Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine and hold contact details for the person who, or organisation that, gives it (rule 3.45). Showing that a testimonial is genuine has two elements; showing that the quote is from a real person and that it reflects what they said. Claims within a testimonial must not mislead or be likely to mislead the consumer. Please see “Claims in testimonials and endorsements” for guidance on making claims in testimonials.
Do not pose as a consumer
Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession (Rule 2.3). It is a breach of the Code for a marketer to write reviews of their own products whilst posing as a genuine consumer.
Seek permission to use the testimonial
Marketing communications must not feature a testimonial without permission (Rules 3.45 and 3.48). When seeking permission to use a testimonial, marketers should be aware of their obligations under Section 10: Database practice. The ASA has upheld complaints when marketers have not been able to prove they have the author's consent (Conservatory Outlet Ltd, 20 March 2013) and when a testimonial was wrongly attributed to a complainant whose image was used without her consent (Phyto Nature Source, 25 October 2006).
Rule 3.48 allows for some exceptions to the requirement to get permission when making accurate quotes from a published source. Marketers quoting from a published source still need evidence to show that the statements are genuine and accurate (eSmart Media Ltd t/a top10healthinsurance.com, 22 January 2014). The ASA ruled that a list of quotes with references to the publications in which they appeared was not sufficient to show that the quotations were from those publications (www.comedyclubbookings.com, 27 March 2013). The ASA ruled against a Spotify ad for the film Taken 2 which quoted “'Eat your heart out 007', says the Daily Star, 'ten out of ten'” because whilst the advertiser had provided an e-mail approving the use of the quote, it did not appear to have come from the same person who had written the published Daily Star review. Furthermore the ASA considered that the average listener would understand “'Eat your heart out 007', says the Daily Star, 'ten out of ten'” to mean that the quote had been made in a published Daily Star review when this was not the case.
Hold documentary evidence
Signed and dated proof is likely to be considered acceptable documentary evidence, however it is not the only form of evidence that the ASA will consider acceptable. For example, where an advertiser was able to provide copies of the e-mails which contained testimonials, the addresses and the ordering history of the customers, the ASA considered sufficient evidence had been provided to demonstrate that the testimonials were genuine (Monark Global Ltd t/a Tru-Diamonds, 11 December 2013). E-mail testimonials from unverifiable addresses (such as hotmail) would not be acceptable in and of themselves although the ASA has accepted testimonials in the form of a provable company e-mail address (de Verde Ltd, 28 August 2013). The ASA considered that a testimonial from an unverifiable web based e-mail address which contained no further contact details was insufficient to demonstrate that the testimonial was genuine and therefore ruled the claim "all testimonials are from actual real customers!" to be misleading (de Verde Ltd, 28 August 2013).
Use testimonials that are relevant to the product
As would you expect, testimonials must relate to the product advertised (Rule 3.46, Home Shopping Selections, 12 December 2007). They should not be taken out of context or edited in a way which is misleading. An ad which used the review of one track on an album in an advertisement for the whole album without attributing the review to the previously released single was found to be misleading (Warner Music UK Ltd t/a Atlantic Records, 23 November 2011). Marketers using testimonials for companies that no longer trade should be careful not to misleadingly imply that they are for other companies and should note that amending testimonials so that they refer to a more recent incarnation of a company will be considered misleading (YorHost, 13 June 2012). However the ASA ruled that it was acceptable for an advertiser to use a genuine testimonial which referred to client’s satisfaction with a specific individual albeit that the testimonial related to work done with a company which had dissolved (Holzmeister Haus Ltd, 4 September 2013).
Beware of restricted product categories
Marketers should be aware that in some circumstances the use of testimonials and endorsements is excluded altogether. Namely, marketers may not use health professionals or celebrities to endorse medicines (rule 12.18) and may not may not make health claims that refer to the recommendation of an individual health professional (rule 15.6.3).
Updated 15 December 2016
Twentieth Century Fox Film Company Ltd, 5 December 2012
YorkTest Laboratories Ltd, 20 June 2012