Bad apples make you taller, thinner and better looking (until Dec 1 2009)

Sir Millard Mulch
Creative Commons License photo credit: rick

One of the things I’ve always counseled you to use in your marketing is testimonials: carefully chosen things your customers have said about their experiences using your products and services.

On Dec 1 2009, that changes a bit.

In some ways, it’s a good thing. It’ll make almost all those lame infomercials edit their fake testimonials.

In others, it’s a bad thing because it will punish (or frighten) good businesses by making them think they can no longer use testimonials or that the ones they can use have to be gutted.

Neither is true.

A great testimonial addresses…

…a common sales objection.

Getting a testimonial – particularly a strong, believable, honest one that directly addresses a common sales objection – can be difficult. Not so much because they are hard to get, but because people don’t always like to talk about their use of a product/service. A lot of that depends on what it is.

Not everyone understands what kind of testimonials are truly valuable. When people tell you they love the product or that they love working with you and your service is wonderful, those are nice and heartwarming comments, but they aren’t strong testimonials.

One type of strong testimonial states specific results, such as “We’re up 70% in same month, prior year sales after working with Mark to improve our marketing over the last 3 months”. That’s a good testimonial, and it’s (naturally) the exact type of thing the FTC doesn’t like.

Why? Because it states specific results that might be 100% factual for one person (or 100, if you have that many), but it still doesn’t mean that every single Joe Blow can achieve the same results by simply falling out of bed in the morning.

If everyone who buys your product can’t typically achieve a documented, 100% factual result stated in a testimonial when THEY use your product / service, you will have a problem using that testimonial EVEN IF 99% OF YOUR CUSTOMERS NEVER USE IT.

Isn’t that grand? “Lowest common denominator” comes to mind.

As you likely assume, these regulations came about mostly because of the bad apples out there. So be it. Let’s get to the details.

Bad apples beware

The new FTC regulations that take effect on December 1 2009 that will require you to be far more careful about the testimonials you use.

Quoting the hard-to-believe results of one highly-motivated person and then saying “these results are not typical” is no longer sufficient. You have to state typical results that your customers get when using your product or service. If those turn out to be difficult or impossible to achieve, expect the FTC to come calling – and not for dinner.

If you haven’t already done so, you need to check your marketing materials TODAY for any claims that – no matter how real and accurate – are not typical.

You can see the FTC-issued guidance on this at http://www.ftc.gov/opa/2009/10/endortest.shtm

This applies to bloggers, advertisers of products/services and many others, so I strongly suggest you give it a look. It’s not a game. Regardless of what party is running Washington, these folks seem to revel in making examples out of business people to ‘send a message’ to everyone else.

Sometimes, these things come down very unfairly. Don’t let it happen to you.

More details from the FTC are available here.

Be gone with you, Debbie Downer

Now that we have the “Debbie Downer” stuff out of the way, there is some good news in this because it does punish the slime in your market along with the good guys.

Several things come out of this, but one thing is clear – it makes measurement all that much more critical to your success.

If your product or service can somehow anonymously document what it does – easy for some products and services, almost impossible for others – you will be ahead of the game.

A lot of this applies to software businesses and those with automation in their products / services – but if testimonials are important to your business, measurement might become essential across your entire product line.

Implement results measurement into your products and services. Not only will it help your product / service, but it will help you sell them to those who REALLY need them AND it’ll be the evidence you need to prove the results of typical use.

NO, I’m not a lawyer. If testimonials are central to everything you do, I strongly urge you to consult your attorney about these regulations.

Meanwhile, you should be measuring results. Imagine what will happen if your products / services can prove to your customers what they are doing for them (and what they are not).

That’s why we’ve had this measurement conversation for years prior to the FTC forcing it upon you.

In a nutshell, the FTC is making some modifications to how US firms, and those advertising in the US, can use testimonials.

It’s no longer good enough to point out that the results mentioned might be exceptional. If you use results-based testimonials or case studies, you also have to tell the viewer or reader what the typical results are that your customers achieve using the product.

This is tough for physical products, such as weight loss programs and the like, but it’s doable. It’s damned near impossible for “how to” products.

The reasons are pretty simple: Most people buy them and don’t do anything with them. Others add or remove processes, or do various things really well or poorly. All of that affects results, and makes it incredibly hard to describe “typical,”

even if you can get people to tell you their results.

Getting them to tell you what they achieved can be a tough row to hoe to start with. Many people are embarrassed to tell you they did nothing with it. Others overstate their results out of pride, or as a means to get more credibility. Some will understate them, to keep attention away from their successes.

None of this has any reflection on the product, or the truth of the advertising involved. It’s a matter of record-keeping and regulatory compliance that may prove beyond the capabilities of many information publishers.

FACTA: Red Flags and Milk Bones

Restless Nights
Creative Commons License photo credit: il Quoquo

Despite the fact that Blondie (our golden retriever/ husky mix) gets credit card applications in the mail, identity theft is really not something that keeps her awake.

For that matter, little does.

When we go to Wells Fargo together, they never ask for her ID.

Maybe the sad Golden Retriever eyes are what the ladies at the drive-up can’t resist. All I know for sure is that on the way home, the old girl (Blondie, that is) filets out in the backseat in Milk Bone heaven.

For us bipeds, life is a bit more demanding. We’re asked for IDs frequently, yet sometimes we aren’t asked even though we’re supposed to be.

Why, whatever do you mean?

The last time I read an American Express merchant agreement, it said something about verifying the cardholder’s identity by checking their driver’s license or similar government-issued ID.

For whatever reason, I can count on one hand the number of times that happened since 1983.

I kind of understand the thought process here. Businesses likely see that as an opportunity to offend their clientele and customers might be annoyed. Still, that’s simple enough to defuse by saying something like “I apologize Ma’am, we just want to be sure that someone else isn’t using your card”. But it doesn’t happen.

Meanwhile, identify theft increases and as you would expect, lawmakers in Washington, in the state house and eventually, in the financial industry respond with ways to combat the problem.

For example, the credit card industry has PA-DSS (and a few things they worked up prior to that).

That’s a FACTA

For everything else, there’s Mastercard. Er, I mean FACTA – the Fair and Accurate Credit Transactions Act of 2003.

You may hear it referred to as “The FTC Red Flags Rule” or just “Red Flags”.

For banks, it’s old news. They’ve been dealing with it since 2003.

Just yesterday, one of my banks called and asked me to drop in sometime so they could scan my new driver’s license (it was new last October). The scan they have shows an expired date. Apparently regs require that the ID they have on file is current. At least they are paying attention (good news).

My presumption is that a scan of your ID allows the bank to compare the scan vs. the one that tall, good-looking guy gave to the teller before attempting to empty your savings account. I don’t know if they actually do that or not.

Are you a financial institution?

You’re probably wondering how all of this impacts the small business owner. For starters, it might just make you into a financial institution.

FACTA applies to any business that provides goods and services to consumers and bills them later (mostly).

Implementation for small businesses keeps getting delayed, for what are probably obvious reasons, but they say they’re serious that the November 1, 2009 deadline is the real deal.

Definitions are funny things. Like standards, they are subject to interpretation. I don’t look upon myself as a financial institution or a creditor, but someone else just might and the same goes for you.

Here’s a quote from the FTC.gov Red Flag Rule page:

The Rule applies to ‘financial institutions’ and ‘creditors.’ It’s important to look closely at how the Rule defines those terms because (emphasis mine) they apply to groups that might not typically use those words to describe themselves.

(snip)

Under the Rule, the definition of ‘creditor’ is broad, and includes businesses or organizations that regularly provide goods or services first and allow customers to pay later.

Examples of groups that may fall within this definition are utilities, health care providers, lawyers, accountants, and other professionals, and telecommunications companies.

The definition also covers businesses or organizations that regularly grant loans, arrange for loans or the extension of credit, or make credit decisions.

Examples include finance companies, mortgage brokers, and automobile dealers or retailers that offer financing or collect or process credit applications for third party lenders. In addition, the definition includes anyone who regularly participates in the decision to extend, renew, or continue credit, including setting the terms of credit.

Because of this, I cant suggest strongly enough that you read the FTC Red Flag Rule documents (link at end of post).

Here’s another one from the Red Flags FAQ – it’s the one that gets me:

The Red Flags Rule applies to businesses that regularly defer payment until after services have been performed.

I don’t defer all of it, and I don’t do it for all clients, but it doesn’t matter because I do it in some cases for some amounts.

I wonder how many businesses that accounts for?

No Quarter for Cities & Community Orgs

Community benefit organizations (also known by the misnomer of “non-profits”) are also subject the Red Flags Rule if their business processes and billing situations fit the profile.

Even the city where you live is considered a creditor by this Red Flags Rule if they (for example) bill you after the fact for the amount of water and sewer your house or business used last month.

If they charged a flat fee for water/sewer, even if it is after you’ve used it, the city wouldn’t be a FACTA creditor. Ahhhh, those little details.

Credit cards and retainers

Thankfully, it doesn’t appear to apply to businesses who take a credit card number and charge it monthly until your balance is paid off (PA-DSS deals with that – we need to talk about that little gem as well).

Likewise, FACTA doesn’t impact businesses who collect a retainer and then credit future services against that retainer. You knew they’d exempt attorneys *somehow*, right?

While this all of this isn’t the end of the world, it will require some process refinement and it might even change how you bill your clients.

You can learn more at http://www.ftc.gov/redflagsrule