Less than two weeks ago, the Federal Trade Commission (FTC or Commission) issued its long-awaited update to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (the Guides). Much ink has already been spilled on the implications of the revised Guides for the social media and online advertising used far more regularly and sophisticatedly now than ever before. But the new Guides bring with them another, more overlooked but potentially just as important change. They modernize the content of the model advertisements they discuss, discarding dated descriptions of female grocery shoppers and male baseball players in favor of nongendered advertisements that move past stereotypes.
Examples of the FTC’s erasure of formerly problematic gender portrayals are prevalent throughout the revised Guides. For instance, the 2009 Guides contain a model advertisement “depict[ing] two women in a supermarket buying a laundry detergent. . . . One comments to the other how clean her brand makes her family’s clothes and the other comments that she will try it because she has not been fully satisfied with her own brand.” The 2023 Guides completely ungender this interaction. In the revised Guides, the housewives become “unidentified shoppers” buying detergent for themselves, not their families.
In another model advertisement from the earlier Guides, “a well-known female comedian and a well-known male baseball player engaging in lighthearted banter about products each one intends to purchase for the other. The comedian says that she will buy him a Brand X, portable, high-definition television so he can finally see the strike zone. He says that he will get her a Brand Y juicer so she can make juice with all the fruit and vegetables thrown at her during her performances.” The updated Guides toss this example entirely. They also completely delete a model advertisement portraying a female administrative assistant trying out computer keyboards.
In addition to removing or modifying specific example advertisements, the revised Guides have removed all gendered pronouns. Examples that had stated “he” or “she” now use the gender-neutral “they” or other ungendered identifiers such as “the Dermatologist” and “the endorser.”
The gender-neutral changes to the revised Guides are not just cosmetic. Just as advertisements mirror reality, reality mirrors advertising. As advertising lawyers know, people believe what they see. That is why claims require substantiation. The Guides’ newly nongendered model advertisements are inherently more inclusive to people of all identities. And through the use of nongendered examples, the Guides encourage more thoughtful use of gender in consumer-facing advertisements.
As the FTC knows perhaps better than anyone, portrayals in advertising matter. Whatever opinions people may have on the expanded reach of the Guides (and there are many), the Commission should be applauded for its wholesale revision of the prior Guides’ antiquated gender stereotypes.
We appreciate the contribution of Summer Associate Alison Gentry to this article.