Social ProofLegal test
Typicality
Also known as "Results not typical"
Author
Berkeley Robinson, Esq.
Managing Attorney, Robinson Law Firm PLLC
Author
Berkeley Robinson, Esq.
Managing Attorney, Robinson Law Firm PLLC
Berkeley has served as the go-to counsel for many scaling businesses in a transactional and litigation management capacity. Before becoming an attorney, Berkeley grew sales teams, ran online marketing campaigns, and did everything else an entrepreneur does—and still does today as the founder of two online businesses.
Definition
"Typicality" is used in more than one setting, and its meaning depends on the context. In advertising, it means a claim that the experience or result an advertisement features is what consumers will generally achieve with the product in actual, albeit variable, conditions of use. Source: 16 C.F.R. § 255.2 A consumer poll or survey can convey the same claim. Source: 16 C.F.R. § 255.2 In class actions the same word names a different requirement: that a class representative's claims be typical of the class's claims. Source: Brief of the Consumer Financial Protection Bureau, TransUnion LLC v. Ramirez
Key legal rules
A typicality claim is still a claim, so it has to be truthful and substantiated. The rules below set out what that requires:
- An advertiser should possess and rely upon adequate substantiation that a featured consumer's experience is representative of what consumers will generally achieve; if it does not have that substantiation, the advertisement should clearly and conspicuously disclose the generally expected performance in the depicted circumstances, and the advertiser must possess and rely on adequate substantiation for that representation. Source: 16 C.F.R. § 255.2
- The disclosure of the generally expected performance should be presented in a manner that does not itself misrepresent what consumers can expect, and to be effective it must alter the net impression of the advertisement so that it is not misleading. Source: 16 C.F.R. § 255.2
- Endorsements claiming specific results usually will be interpreted to mean that the endorser's experience reflects what others can also expect, and statements like “Results not typical” or “Individual results may vary” won't change that interpretation. Source: FTC Staff, FTC's Endorsement Guides: What People Are Asking (June 2023) The one qualification is that an advertiser possessing reliable empirical testing demonstrating that the net impression of its advertisement with such a disclaimer is non-deceptive will avoid the risk of the initiation of an action in the first instance. Source: 16 C.F.R. § 255.2
- Even a pointed disclaimer such as “Notice: These testimonials do not prove our product works. You should not expect to have similar results” leaves the ad likely to be deceptive unless the advertiser has adequate substantiation that new users typically will experience results similar to those of the testimonialists. Source: 16 C.F.R. § 255.2
- A typical-results disclosure must communicate the typical outcome for users who start the program, not only for those who stick with it. Source: 16 C.F.R. § 255.2
- A range of results is not an adequate statement of what users can generally expect when the range is so broad that it does not sufficiently communicate that expectation. Source: 16 C.F.R. § 255.2
- A disclosure of generally expected results based on the mean is misleading if the mean is substantially affected by outliers. Source: 16 C.F.R. § 255.2
- A typical-results disclosure can still be misleading if it applies only to limited circumstances that the advertisement does not describe, such as results from a southern climate in a nationally disseminated ad. Source: 16 C.F.R. § 255.2
- A disclosure is “clear and conspicuous” only if it is difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers. Source: 16 C.F.R. pt. 255
- When a typical-results disclosure is required for a microtargeted ad, its adequacy is judged from the perspective of the microtargeted individuals, and it must be in the same language as the ad. Source: 16 C.F.R. pt. 255
- A disclosure that is clear and conspicuous on a computer browser but not when the ad is rendered on a smartphone is inadequate, because some consumers will view the ad on their smartphones. Source: 16 C.F.R. pt. 255
- Typicality substantiation is not limited to formal testimonials: if consumers are likely to take away from a celebrity interview that the athlete's experience is typical of those who undergo the same procedure, the advertiser must have substantiation for that claim. Source: 16 C.F.R. § 255.5
For the sake of space, this page lists only the primary rules related to this term that most businesses should follow. More may apply to your situation, and your unique facts affect how they apply.
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Send a messageWhy these rules exist
When a consumer's result appears in an ad, readers take it as a forecast of their own, so a testimonial carries a claim about all customers that the ad never states in words. Source: 16 C.F.R. § 255.2 Requiring either proof of typicality or a disclosure of the generally expected performance puts the figure a buyer should plan around in front of that buyer, so an outlier is not mistaken for the norm. A disclosure that leaves the original expectation intact does nothing, which is why the disclosure must change the ad's net impression. Source: 16 C.F.R. § 255.2
The same mechanism explains why a generic disclaimer does not satisfy the duty. The Commission tested testimonials that clearly and prominently disclosed either “Results not typical” or a stronger statement, and neither disclosure adequately reduced the communication that the experiences depicted are generally representative. Source: 16 C.F.R. § 255.2
Enforcement examples
In re Computer Business Services, Inc. (home-based business ventures)
In re Computer Business Services, Inc., Docket C-3705, Complaint and Decision and Order (Jan. 21, 1997)
Computer Business Services, Inc. sold home-based computer business ventures. Source: In re Computer Business Services, Inc., Docket C-3705 (F.T.C. Jan. 21, 1997), 123 F.T.C.Its advertising told consumers they could expect to earn $4,000 per month. Source: In re Computer Business Services, Inc., Docket C-3705 (F.T.C. Jan. 21, 1997), 123 F.T.C. Its promotional materials also carried endorsements from purported Center Owners, one of whom said, “I earned $101,865 in one year with my own CBSI business.” Source: In re Computer Business Services, Inc., Docket C-3705 (F.T.C. Jan. 21, 1997), 123 F.T.C. The complaint alleged that those endorsements did not reflect the typical or ordinary experiences of Center Owners. Source: In re Computer Business Services, Inc., Complaint It also alleged that the vast majority of Center Owners never recouped their initial average investments of approximately $9,000. Source: In re Computer Business Services, Inc., Docket C-3705 (F.T.C. Jan. 21, 1997), 123 F.T.C.
Outcome. The consent order barred respondents from representing that a user testimonial reflects the typical or ordinary experience of users unless the representation is true and backed by competent and reliable evidence, or they disclose, clearly and prominently and in close proximity to the testimonial, either what the generally expected results would be or that consumers should not expect similar results. Source: In re Computer Business Services, Inc., Docket C-3705 (F.T.C. Jan. 21, 1997), 123 F.T.C. The order also required respondents to pay the Commission $5,000,000 within fifteen days of service. Source: In re Computer Business Services, Inc., Docket C-3705 (F.T.C. Jan. 21, 1997), 123 F.T.C.
In re Victoria Bie d/b/a Body Gold (nutritional supplements)
In re Victoria Bie, Docket C-3708, Complaint and Consent Order (Jan. 22, 1997)
Victoria Bie, doing business as Body Gold, advertised and sold nutritional supplements marketed for weight loss, fat loss and muscle building. Source: In re Computer Business Services, Inc., Docket C-3705 (F.T.C. Jan. 21, 1997), 123 F.T.C. Her advertisements carried testimonials such as “Since I started Body Gold products I have lost a total of 36 inches and 64 pounds.” Source: In re Computer Business Services, Inc., Docket C-3705 (F.T.C. Jan. 21, 1997), 123 F.T.C. According to the complaint, those testimonials were represented as reflecting the typical or ordinary experience of members of the public who used the product. Source: In re Computer Business Services, Inc., Docket C-3705 (F.T.C. Jan. 21, 1997), 123 F.T.C.
Outcome. The consent order prohibited Bie from representing that any testimonial or endorsement is the typical experience of users of the advertised product, unless the claim is substantiated or she discloses the generally expected results clearly and prominently. Source: In re Computer Business Services, Inc., Docket C-3705 (F.T.C. Jan. 21, 1997), 123 F.T.C.
FTC v. Minuteman Press, Inc. (franchise sales)
FTC v. Minuteman Press, Inc., Findings of Fact
Minuteman and Speedy marketed their franchises through regional vice presidents and other senior personnel, on occasion including the chief executive, who made sales and profitability claims to prospective franchisees to induce them to become store owners. Source: FTC v. Minuteman Press, Inc., Findings of Fact The court treated the targeted statements as claims about typical results, not the range of possible ones: they were representations as to the gross sales typically realized by franchisees. Source: FTC v. Minuteman Press, Inc., Findings of Fact Against those claims, the FTC's economist found median monthly Minuteman sales between $18,000 and $19,500 and average sales between $22,000 and $23,000. Source: FTC v. Minuteman Press, Inc., Findings of Fact
Outcome. The court found that the plaintiff had established by a preponderance of the credible evidence that the typical gross sales figures given to prospective Minuteman franchisees were false. Source: FTC v. Minuteman Press, Inc., Findings of Fact For Speedy, none of the average or median figures approached the $20,000 sales level that defendants had represented to prospective franchisees as typical, and the court held the falsity of those representations established. Source: FTC v. Minuteman Press, Inc., Findings of Fact
FTC v. Vemma Nutrition Co. (multilevel marketing of nutrition drinks)
FTC v. Vemma Nutrition Co., No. CV-15-01578-PHX-JJT (D. Ariz.), Order
Vemma sold nutrition and energy drinks through a network of members it called Affiliates. Source: FTC v. Vemma Nutrition Co., No. CV-15-01578-PHX-JJT (D. Ariz.), Order The court found that in both 2013 and 2014 more than 93% of Affiliates earned less than $6,200, yet Vemma's print, web, audio, video and live materials showed exorbitant Affiliate earnings. Source: FTC v. Vemma Nutrition Co., No. CV-15-01578-PHX-JJT (D. Ariz.), Order Many of those representations had no “results not typical” disclaimer at all, and others had one that was difficult, if not impossible, to read and was only intermittently flashed on screen for a few seconds. Source: FTC v. Vemma Nutrition Co., No. CV-15-01578-PHX-JJT (D. Ariz.), Order In live presentations, speakers often followed a “results not typical” disclaimer with a statement such as “I hope you’re not typical.” Source: Order (FTC v. Vemma)
Outcome. The court reasoned that representations may be misleading despite a disclaimer such as “results may vary” if the consumer may reasonably believe that a statement of unusual earning potential represents typical earnings. Source: FTC v. Vemma Nutrition Co., No. CV-15-01578-PHX-JJT (D. Ariz.), Order It found the FTC likely to succeed in showing material misrepresentations and omissions, and in showing that Vemma furnished Affiliates the means and instrumentalities to make them, and it said it would grant in part the FTC's request for a preliminary injunction. Source: Order (FTC v. Vemma)
In re Jenny Craig, Inc. (weight loss program)
In re Jenny Craig, Inc., D9260, Complaint and Analysis of Proposed Consent Order to Aid Public Comment
Jenny Craig's advertisements featured individual results such as “Jeanne-Mer Garcia lost 81 lbs.” Source: In re Jenny Craig, Inc., D9260, Complaint The complaint alleged that these advertisements represented, directly or by implication, that Jenny Craig customers typically are successful in reaching their weight loss goals. Source: In re Jenny Craig, Inc., D9260, Complaint
Outcome. The proposed consent order required that evidence for any claim that weight loss is typical or representative of all participants, or of a subset, be based on a representative sample of participants. Source: In re Jenny Craig, Inc., D9260, Analysis of Proposed Consent Order to Aid Public Comment For testimonials not representative of what participants generally achieve, the proposed order required a disclosure of either the generally expected success or the limited applicability of the endorser's experience. Source: In re Jenny Craig, Inc., D9260, Analysis of Proposed Consent Order to Aid Public Comment The limited-applicability route allowed statements such as “This result is not typical. You may be less successful.” Source: In re Jenny Craig, Inc., D9260, Analysis of Proposed Consent Order to Aid Public Comment The Endorsement Guides take a different view of such statements: the Commission believes that similar disclaimers are unlikely to be effective. Source: 16 C.F.R. § 255.2
FTC v. Warrior Trading (day-trading courses)
Warrior Trading: Complaint
Warrior Trading sold day-trading workshops and courses, and the complaint said it offered consumers the chance to learn Cameron's strategies and watch him trade. Source: FTC v. Warrior Trading, Complaint Cameron said, “my results and my experiences trading are not typical.” Source: FTC v. Warrior Trading, Complaint The complaint alleged that Warrior Trading admits in its disclaimer that it does not track the typical results of its current or past customers, and that simulator data from November 2020 through March 2021 showed 74% of accounts lost money. Source: FTC v. Warrior Trading, Complaint
Outcome. The complaint alleged that the disclaimers are ineffective and fail to prevent the earnings claims from being misleading and deceptive. Source: FTC v. Warrior Trading, Complaint It further alleged that in some instances the disclaimers reinforce the claims by contrasting most day traders who lose money with successful traders who “are not typical.” Source: FTC v. Warrior Trading, Complaint
Exposure
A business that features atypical results without substantiation or an effective disclosure risks orders that cost money and control over its marketing. In the Computer Business Services consent order, the respondents were required to pay $5,000,000 within fifteen days of service. Source: In re Computer Business Services, Inc., Docket C-3705 (F.T.C. Jan. 21, 1997), 123 F.T.C. In FTC v. Vemma, the court entered a temporary restraining order that appointed a receiver over the corporate defendants and ordered an asset freeze with respect to Vemma and Mr. Boreyko. Source: FTC v. Vemma Nutrition Co., No. CV-15-01578-PHX-JJT (D. Ariz.), Order In the preliminary injunction in John Beck Amazing Profits, the defendants were restrained from airing two infomercials without first adding a series of disclaimers. Source: FTC v. John Beck Amazing Profits, LLC, Preliminary Injunction, Appointment of Monitor, and Other Equitable Relief One of those disclaimers, required whenever an endorsement appeared, was “Endorser’s results unique. Results not typical. Actual results vary widely.” Source: FTC v. John Beck Amazing Profits, LLC, Preliminary Injunction, Appointment of Monitor, and Other Equitable Relief
The exposure falls on the advertiser even when the endorser is not liable. Advertisers are subject to liability for misleading or unsubstantiated statements made through endorsements, and an advertiser may be liable for a deceptive endorsement even when the endorser is not. Source: 16 C.F.R. § 255.1 FTC staff guidance on typicality gives no cover: it does not provide a safe harbor from potential liability, and whether a claim is deceptive depends on the facts of the specific case. Source: FTC Staff, FTC's Endorsement Guides: What People Are Asking (June 2023)
Notice can raise the stakes. The complaint against Lurn and Singal alleged that the FTC sent Notices of Penalty Offenses warning of potential liability for civil penalties under Section 5(m)(1)(B) for knowingly engaging in practices the Commission has determined to be unfair or deceptive, and that they continued to make misleading representations after receiving them. Source: FTC Complaint against Lurn and Singal
FAQs
- 1.255.2. 16 C.F.R. § 255.2
- 2.255.2. 16 C.F.R. § 255.2
- 3.cfpb_transunion-llc-v-ramirez_amicus-brief_2021-03. Brief of the Consumer Financial Protection Bureau, TransUnion LLC v. Ramirez
