Comment submitted by Electronic Retailing Association and Council for Responsible Nutrition

Before the FEDERAL TRADE COMMISSION Washington, DC IN T HE MATTER O F ENDORSEMENT GUIDES R EVIEW Project No. P034520 COMMENTS OF Electronic Retailing Association and Council for Responsible Nutrition Counsel of Record: Jeffrey D. Knowles Edward F . Glynn, Jr. VENABLE LLP th 575 7 Street, NW Washington, DC 20004 (202) 344-4000 Of Counsel: Gary D. Hailey Mikhia E. Hawkins Melissa Landau S teinman INTRODUCTION On November 28, 2008, the Federal Trade Commission (“Commission” or “FTC”) published in the Federal Register, 73 Fed. Reg. 72374, a Notice of – and request for comment on – proposed changes (“Notice”) to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (“Guides”), codified at 16 C.F.R. Part 255. These Guides, although not formal FTC Rules, constitute one of the most important statements of policy by the FTC in the field of advertising in general. The Guides are responsible for the ubiquitous “Your Experience May Vary” disclaimer seen at the bottom of television and other advertising, as well as the rules governing the payment of compensation to endorsers and testimonials, the documenting of testimonial claims and many other related policies. The changes proposed by the Commission ...