The Federal Trade Commission (FTC) announced this week that it sent more than 90 letters to social media influencers and advertisers, reiterating the need for influencers to “clearly and conspicuously” disclose their relationships with brands in social media posts that promote or endorse branded products. The FTC reviewed the Instagram posts of various unnamed celebrities, athletes and other influencers and sent the letters in response to petitions filed by public interest groups concerned with the lack of disclosures about such endorsement relationships. Notably though, the staff did not predetermine in every instance whether the brand mention was in fact sponsored, as opposed to an organic mention – thus there may not have been a legal obligation by the influencer to make a disclosure at all.

The FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (Endorsement Guides), while not law, provide guidelines as to when endorsers and advertisers should disclose material connections. The FTC’s letters reminded the recipients about the concepts set forth in the Endorsement Guides and also provided the following insights into the FTC’s views about disclosures:

  • Consumers viewing posts in their Instagram streams on mobile devices typically see only the first three lines of a longer post unless they click “more,” and many consumers may not click “more.” Therefore, hashtags and links appearing at the end of a post may not be a “conspicuous” disclaimer.
  • Where there are multiple tags, hashtags, or links, readers may just skip over them, especially where they appear at the end of a long post. Therefore, influencers and advertisers should consider having disclosures at the beginning of posts or avoid burying them at the end of a post among a list of other hashtags or links.
  • Hashtags such as “#sp,” “Thanks [Brand],” or “#partner” may be confusing or unclear. Therefore, influencers and advertisers should carefully consider whether the intended audience of the post would understand the meaning of the hashtag or other disclosure used.

TAKEAWAY: The FTC and public interest groups are continuing to scrutinize influencer marketing and are paying special attention to disclosures in the mobile context. The FTC’s letters are a reminder that, regardless of the platform, both advertisers and their influencers are responsible, and may be liable, for making adequate disclosures about their material connections, unless the connection is already clear from the context of the communication. As we’ve noted before, the standard for “clear and conspicuous” disclosure is a performance standard, so if a substantial number of people are confused, the disclosure is not effective.