You Might Be a Winner
        A blog from the attorneys of Verrill

        I Said Your Product was Great, Now Gimme a Prize: The FTC Enforces Its Endorsement Guidelines

        by Robert Laplaca on January 6, 2016

        Yesterday, the FTC settled a deceptive advertising lawsuit against the creators and marketers of the Lumosity “brain training” program. For those of you not smart enough to know, the “brain training” program claimed to not only boost your performance at work or school, but also slow down those pesky cognitive impairments we all seem to experience as we get older.

        What was I saying? Oh, yeah. As part of its marketing campaign, Lumosity ran an “Athlete Testimonial Contest” inviting entrants to share their story of how “Lumosity has helped them take their athletic abilities to the next level for the chance to win a Lifetime Subscription, the new iPad, and more!” (NB: Apple frowns upon giving away iPads.)

        With this call to action, burgeoning athletes took time away from their snatch and jerks to post their stories online to gain entry into the (sic) “contest”. (NB: I have a big pet peeve about calling a chance promotion a contest, and it’s made worse by the fact that the court order continues this misnomer.) For instance, John P. from Fairfax, VA wrote that by using Lumosity’s braining training program he can “go from muay thai, to wrestling, to jiu jitsu, back to muay thai.” Wow! You go, John P.

        The problem with this approach was that Lumosity never disclosed that these wonders of nature were solicited to provide these endorsements in return for entry into the sweepstakes. Consistent with the FTC’s Guides Concerning Endorsements and Testimonials, the consent order enjoined Lumosity from “clearly and conspicuously” disclosing any “material connection” between any person providing an “endorsement” of Lumosity’s product “including but not limited to the use of a contest with prizes to solicit such Endorsement.” The order states that, in short, “clearly and conspicuously” means a disclosure that is “difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers.” An “endorsement” is any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser.” And a “material connection” is “any relationship that materially affects the weight or credibility of any endorsement and that would not be reasonably expected by consumers.” Like entry into a contest or sweepstakes!

        Practice Tips:

        It’s o.k. to ask consumers to write about your product in return for an entry into a contest or sweepstakes (NB: you can’t have a chance promotion where the only way to enter is for the consumer to buy your product to be able to give his/her testimonial). But make it clear that this is what’s going:

        1. Require entrants to include language in their postings, such as: #Ad. #Promotional Endorsement. #[name of]Contest or “Sweeps entry provided for testimonial.”
        2. Disclose this requirement in Official Rules, ads and prior to entry.
        3. Disclose clearly on your hosting site that the endorsements/testimonials were provided in return for an entry into the sweeps/contest.
        4. If entry includes a video, the entrant must disclose the connection orally and clearly in the video itself.
        5. If you are posting or advertising winners and their testimonials, clearly disclose these testimonials were provided in return for an entry.

        NB: “nota bene” from the Classical Latin meaning “take special note.” I’m sure glad I passed the “brain training” program. #Endorsement.

        You Might Be a Winner

        Promotion and sweepstakes laws vary widely across the fifty states and under federal regulations, creating complex challenges for today’s innovative marketers. This blog explores the latest updates and trends in promotion and marketing law, offering practical insights to help brands stay compliant while pushing creative boundaries. We’ll also discuss noteworthy, questionable, and groundbreaking promotional campaigns to encourage thoughtful discussion among marketing and legal professionals.

        Key Contacts

        Subscribe

        Looking for more great content? Subscribe for regular legal updates and information delivered right to your inbox.

        Firm Highlights

        Blog

        Hurry Up and Wait

        This is the third in a series of Verrill blog posts on Maine’s packaging extended producer responsibility (“EPR”) law[1]. In July we reported...
        Media Mentions

        Cybersecurity and AI Governance: Scott Anderson Featured in Massachusetts Lawyers Weekly

        Verrill Managing Partner Scott Anderson was recently featured in Massachusetts Lawyers Weekly discussing how law firms can build attorney buy-in for...
        Blog

        Section 530A Account Update: ERISA Status of Trump Accounts

        The Department of Labor has issued important guidance addressing whether employer programs that permit contributions to Section 530A accounts (and...
        Press Releases

        97 Verrill Attorneys Recognized by Best Lawyers® 2027, Including Four Named Lawyers of the Year

        AUGUSTA, Maine, BANGOR, Maine, BOSTON, Mass., PORTLAND, Maine, and WESTPORT, Conn., (August 20, 2026) – Verrill is proud to announce that 97...
        Alerts and Newsletters

        SEC’s Proposed “Reg Crypto”: What Founders Need to Know

        Startup founders and emerging-growth companies have a number of options for raising capital under the federal securities laws, including Regulation D...
        Blog

        After 45 Years, the IRS Speaks on DCAP Nondiscrimination Testing – And It’s Good News

        Employers that provide a Dependent Care Assistance Program will be pleased to learn that for the first time in 45 years, the IRS has issued guidance...
        Media Mentions

        U.S. Courts Highlights Annabel Rodriguez’s Journey from Fellow to Mentor

        Verrill attorney Annabel Rodriguez was featured in a recent U.S. Courts article titled “From Fellows to Mentors: Alumni Share Lasting Lessons from...
        Media Mentions

        Robert Keach Discusses Bankruptcy Auction Strategy in Law360

        Verrill attorney Robert Keach spoke with Law360 article examining the complex bankruptcy auction process that resulted in the sale of 23 summer...
        Media Mentions

        Martha Gaythwaite Featured in Portland Press Herald Coverage of Sig Sauer Trial Victory

        Verrill attorney Martha Gaythwaite was highlighted in media coverage of a federal trial in Bangor involving firearm manufacturer Sig Sauer. As...
        Media Mentions

        Law360 Quotes Robert Keach on Senate Bill Affecting Small Business Restructurings

        Verrill attorney Robert Keach was recently quoted in a Law360 article discussing federal legislation that would permanently restore the $7.5 million...
        Alerts and Newsletters

        SAFEs and Preferred Stock – Key Deal Terms Every Founder Should Know

        SAFEs Before negotiating a term sheet for preferred stock, many early-stage companies, particularly at the seed stage, first raise capital through...
        Press Releases

        Verrill Welcomes Business Restructuring and Insolvency Attorney Nimra Tariq

        BOSTON, Massachusetts – Verrill is pleased to announce that Nimra Tariq has joined the firm’s Business Restructuring and Insolvency Group as an...