The National Advertising Division of the Council of Better Business Bureaus (NAD) recently investigated the Nutrisystem pinboard on the social media website Pinterest for use of consumer testimonials without appropriate disclosures. Apparently, Nutrisystem inadvertently left off necessary disclosures beneath images of consumers touting their weight loss. As a result, the NAD brought the action detailed below based on the fact that none of the pins set forth the proper disclosures as required by the Federal Trade Commission’s Endorsement Guidelines.

As background, Pinterest is a social media website that permits users to “pin” images from across the web to their “pinboards,” thus creating a collection of images that, when clicked on, hyperlink back to the website from which they were taken. Each pin provides a space where the pinning user may type words such as a description or provide any necessary advertising disclosures that may be required by law. For example, the Endorsement Guidelines require advertisers to provide disclosures where testimonial results are not typical, “clearly and conspicuously dislos[ing] the generally expected performance in the depicted circumstances.”  Additionally, the NAD has stated on numerous occasions that such disclosures must be in close proximity to the claim.

In this case, the NAD discovered that Nutrisystem was operating a pinboard entitled “Real Consumers. Real Success.” On that pinboard, Nutrisystem had customer’s names, weight loss, and photos showing weight losses ranging from 46 pounds to 223 pounds using the Nutrisystem program. Each of the pins represented a customer testimonial. No disclosures appeared below the photographs, but if a Pinterest user were to click on the photograph, they would be directed to the Nutrisystem website where appropriate disclosures would appear. In response to the notice from the NAD, Nutrisystem acknowledged that the missing disclosure was an oversight and included the following below each testimonial: “Results not typical. On Nutrisystem®, you can expect to lose at least 1-2 lbs. per week. Individuals are remunerated. Weight lost on prior Nutrisystem® program.” Receiving Nutrisystem’s appropriate response, the NAD closed the matter.

This case is a sign to all advertisers using Pinterest and other social media websites that the rules of advertising apply equally on those sites as they do elsewhere. Advertisers must be careful to comply with proper disclosure requirements including the Endorsement Guidelines and the requirement that disclosures be placed in close proximity to a claim.

Arent Fox is continuing to monitor developments in advertising as they relate to social media. Please contact Sarah Bruno or Eva Pulliam with questions.