Earlier this month, the FTC settled with two social media influencers for failing to provide adequate disclosures in their promotions of their company, and issued 21 warning letters to other influencers it felt continued to violate the FTC Endorsement Guidelines in spite of the educational letters the FTC had sent earlier this year. In addition to the new “FAQ” examples the FTC provided in its guidance materials and this blog post (which contains an instructional video), the FTC hosted a live Twitter chat to directly answer questions regarding its influencer disclosure policies. Here were some of the key takeaways:
- Paid Partnership Tags: The FTC cautioned influencers not to assume that disclosures built into platforms are sufficient—it depends on whether they clearly and conspicuously disclose the influencer’s connection to the product or brand.
- Facebook “Likes”: When asked about its policy regarding influencers and “likes,” the FTC stated that its policy remains unchanged—likes are endorsements. In its guidance document, the FTC advises companies to avoid influencer campaigns that use platforms that do not permit adequate disclosures. However, during the Twitter chat the FTC reiterated that it would have to determine whether likes are “material” before taking any action.
- #ad Disclosures: The FTC repeatedly was asked what constitutes an “adequate” disclosure, and the FTC reiterated that disclosures must be unambiguous and conspicuous. For example, #ad is sufficient so long as it is easily noticed by consumers—if it is interspersed with other hashtags or links, consumers are not likely to see it. Similarly, #XXPartner (where “XX” is a brand name) should be sufficient, so long as it is readily apparent to consumers. The FTC said a disclosure such as “#ambassador,” however, is too ambiguous and therefore would not be sufficient.
- Instagram/SnapChat “Stories”: The FTC said influencers should superimpose their disclosure over platforms such as Instagram or SnapChat stories, just as they can superimpose any other text (such as their location or the time of day). In addition, the FTC said that in a series of short, disappearing posts, disclosure on the first post should be sufficient so long as it stands out and viewers have an adequate amount of time to see it.
- Monitoring of Influencers: The FTC emphasized that brands are responsible for monitoring and following up with their influencers to ensure they comply with their disclosure obligations. However, if an influencer refuses to listen and is dismissed, the FTC acknowledged the brand will have done all it can do in that circumstance.
- Free Gifts: Even if an influencer receives a free gift with no obligation to post about it, a subsequent post nevertheless will constitute an ad if the gift was sent because of the individual’s status as an influencer or if the gift was sent for the influencer to review.
Finally, the FTC noted that the FTC has no formal “certification” process for influencer disclosure practices, but FTC staff are always happy to provide informal guidance.