New Guidelines Cement FTC’s Strong Influence Over Influencer Marketing
Connections Requiring Disclosure
The FTC’s new guidance reiterates its long-held position that influencers who endorse products or services must disclose any “material connection” they have with the brand. Such a connection can be financial, personal, or employment based. Notably, the new guidelines advise that tags, likes, pins, and similar actions are endorsements that could trigger disclosure obligations.
Language of Disclosure
The FTC provides several helpful examples of disclosures that it will generally consider adequate. For example, it suggests simple and clear language such as “thanks to [brand] for the free product,” or terms like “advertisement,” “ad,” or “sponsored.” On the other hand, the FTC recommends discouraging vague or confusing terms such as “sp,” “spon,” or “collab,” and stand-alone terms like “thanks” or “ambassador.”
Platform Tools Not Necessarily Sufficient
As more social media platforms, most notably Instagram, roll out new tools to tag and identify sponsored content, the FTC is throwing cold water on their efforts. The new guidelines put advertisers on notice that platform disclosure tools may not be “good enough.” Takeaway: platform disclosure tools may be necessary, but not sufficient.
Mind the Medium
The new guidance offers clear instructions for disclosures in various forms of digital media. Specifically:
- Pictures: The FTC recommends superimposing the disclosure over the picture.
- Videos: The FTC recommends including the disclosure in the video itself, and not just in the description uploaded with the video. Best practice is to include the disclosure in both audio and video.
- Live Streams: The FTC recommends having the disclosure repeated periodically so that viewers who only tune in for part of the video will be reasonably likely to hear the disclosure.
If nothing else, the new influencer guidance is a clear indication that the FTC remains intensely focused on influencer disclosures. Brands should expect continued FTC enforcement in the near future, and while the FTC does not appear to have levied any fines to date against brands or influencers related to influencer disclosures, the first round of fines may be just around the corner.
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