The Federal Trade Commission released new guidance aimed at educating and reminding online influencers about their obligations to prevent deceptive advertising. The FTC’s Disclosures 101 for Social Media Influencers features a brochure and accompanying videos that emphasize that it is the influencer’s responsibility to make the disclosures required to comply with truth in advertising laws, cautioning that influencers cannot “rely on others to do it.” Although the FTC’s existing Endorsement Guides apply to brands and influencers, these new guidance materials reflect the FTC’s specific focus on advertising by social media influencers.
Consistent with the Endorsement Guides, the new guidance reminds influencers that they must disclose any relationships or “material connections” they have with brands or products they endorse through social media. Importantly, the definition of a “material connection” to a brand is not limited to financial relationships: it “includes a personal, family, or employment relationship or a financial relationship.” Financial relationships also include situations in which a brand provides an influencer with free or discounted products or other benefits. And, financial relationships are not product-specific—an influencer should disclose an existing brand relationship when mentioning a brand’s product, even if the brand did not request that the influencer mention that specific product.
Because endorsements trigger the obligation to disclose material connections, influencers should pay attention to the types of activities that the FTC may consider to be endorsements. The new guidance defines “endorsements” broadly, stating that “tags, likes, pins, and similar ways of showing you like a brand or product are endorsements.” The FTC also cautions influencers against assuming that their followers already know about the influencer’s existing brand relationships.
The new guidance also offers tips for making disclosures conspicuous. Most importantly, disclosures should always accompany the endorsement message itself. Disclosures that appear solely on a profile page, within a string of hashtags or links, or at the end of posts or videos, do not comply with the FTC’s requirements because consumers are likely to miss the disclosures. For video or live stream endorsements, influencers should include repeated audio and text disclosures in addition to disclosures in the video description. For picture-based disclosures on platforms like Instagram and Snapchat, influencers should superimpose the text of the disclosure over the picture.
The FTC also reminds influencers that disclosures should be clear and easy to understand. Simple and clear messages, like advertisement, ad, sponsored, and Thanks to Acme brand for the free product, are likely sufficient if conspicuously posted. Moreover, the guidance specifies that the terms AcmePartner and AcmeAmbassador (where Acme is the brand name) can constitute effective disclosures on space-limited platforms like Twitter. In contrast, abbreviations (e.g., sp, spon, or collab) and standalone terms (e.g., thanks or ambassador) are not compliant disclosures indicating brand relationships or material connections. Additionally, the FTC disfavors relying solely on a platform’s disclosure tool to satisfy the influencer’s own disclosure requirement.
Finally, influencers cannot promote dishonest product experiences or products that they haven’t tried. Importantly, influencers cannot “make up claims about a product that would require proof the advertiser doesn’t have – such as scientific proof that a product can treat a health condition.” This portion of the new guidance is not surprising, considering the recent requests for the FTC to take action regarding celebrity and influencer endorsements of so-called detox teas. Influencers wanting to stay out of the FTC’s enforcement crosshairs should ensure that their social media endorsements comply with the FTC’s guidance.
The FTC publication is “Disclosures 101 for Social Media Influencers,” available at https://www.ftc.gov/system/files/documents/plain-language/1001a-influencer-guide-508_1.pdf.
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Finnegan is deeply saddened by the death of our colleague Donald R. Dunner, who passed away on October 16, 2019, after a life of dedication and inspiration to many in IP law. Don was in a category all his own with his talent and distinct knowledge of IP law. His direct approach and enthusiasm for work and life touched everyone who worked with him, and we will miss him dearly.