The Federal Trade Commission (FTC) sent more than 90 letters to celebrities, athletes and other influencers – as well as to marketers – highlighting the need for influencers to “clearly and conspicuously” disclose their “material connections” in accordance with the FTC’s Endorsement Guides when they endorse brands on social media. The FTC letters mark the first time that the FTC has reached out directly to influencers, indicating that influencers could be subject to their own FTC actions if they fail to disclose their relationships with brands on social media.
In its letters to influencers, the FTC referenced each influencer’s Instagram post(s) endorsing a specific brand and reminded them of their obligations under the FTC Endorsement Guides to disclose their material connections in “unambiguous language” and to make their disclosures “stand out” so that they can be “easily” viewed. For example, according to the FTC, influencers should not bury disclosures in a long list of hashtags or links. The FTC also advised that consumers should not be required to look for disclosures and specifically referenced Instagram streams on mobile devices, advising that any material connection should be disclosed in the first three lines of the post above the “more” button.
The FTC further advised that certain disclosures in influencer posts – such as “#sp,” “Thanks [Brand],” and “#partner” – are not sufficiently clear because “many consumers” would not understand that they meant that a post was sponsored. According to the FTC, while there is no one-size-fits-all way to make a disclosure, influencers should avoid unfamiliar abbreviations or ambiguous or “cryptic” words that are subject to multiple interpretations.
The FTC’s letters to marketers provided similar guidance, and also recommended that marketers implement and/or evaluate their social media policies and monitor their influencers to ensure that their posts contain clear and conspicuous disclosure of their relationship with the marketer.
All involved parties should take note of these recommendations, as failure to comply could result in action against the marketer, as well as any of its influencers who fail to disclose their material connections in accordance with the FTC Endorsement Guides.
Allison Fitzpatrick and Vejay Lalla are partners in the Advertising, Marketing & Promotions Practice Group at Davis & Gilbert LLP. Allison may be reached at 212.468.4866 or firstname.lastname@example.org. Vejay may be reached at 212.468.4975 or email@example.com. Paavana L. Kumar is an associate in the Advertising, Marketing & Promotions Practice Group at Davis & Gilbert LLP. She may be reached at 212.468.4988 or firstname.lastname@example.org.