Unlocking the Future: The Transformation of Influencer Marketing

Unlocking the Future: The Transformation of Influencer Marketing

By: Allison Fitzpatrick

In June, the FTC released its final Endorsement Guides, which were last updated in 2009. Important updates include expanding the definition of “endorser” to include virtual influencers, re-emphasizing that agencies, intermediaries and influencers can be held liable for deceptive endorsements, and a new section on influencer marketing directed to children.

Notably, the updated Endorsement Guides articulate a stricter definition for “clear and conspicuous” disclosures, going above and beyond the prior standard to mandate that online disclosures must be “unavoidable.” This means that a consumer cannot miss the disclosure and must not be required to click through or take other actions to see material information. According to the FTC, the social media platforms’ built-in disclosures tools are not unavoidable and therefore not sufficient. Instead, influencers should include their own disclosures in the video itself and include audio and visual disclosures if the endorsement is made via both mediums.

In its guidance accompanying the Endorsement Guides, the FTC cautioned that disclosures, such as “sponsored,” “promotion” and #sweepstakes, are not sufficient on their own and should include the name of the sponsoring party in the post. The National Advertising Division (NAD) applied the FTC’s guidance in an independent monitoring action when it found that a “sponsored” disclosure was insufficient for social media content promoting a brand and posted by a publisher because consumers may not understand whether the post was sponsored by the brand or by the publisher.

The FTC (as well as NAD) will be monitoring influencer content to ensure compliance with the updated Endorsement Guides, specifically focusing on whether influencers are clearly identifying the sponsoring party in their posts and are including audio and visual disclosures when their endorsements are made both audibly and visually.