The FTC recently announced that it sent out more than 90 letters to influencers and marketers reminding them of their obligations surrounding clear and conspicuous disclosures of any material connection between social media influencers and marketers. Although it does not appear the FTC performed any significant investigations into any specific campaigns, the sample letters and the FTC’s press release offer some guidance on how endorsers can effectively make disclosures.
Disclosures Need to Be “Conspicuous”
The FTC specifically notes that for a disclaimer to be “conspicuous” in an Instagram post caption, it should be within the first three lines of text instead of only being apparent after a user has to click “more.” Further, disclosures buried in a long string of hashtags are also not likely to be noticed by consumers. This discussion builds on the FTC’s previous FAQs which stated that disclosures should not be made at the bottom of a page or at the end of posts. It further adds to the clarity offered by last year’s Warner Bros settlement, in which the FTC determined disclosures “below the fold” in YouTube video descriptions were inadequately conspicuous.
Disclosures Need to Be “Clear”
For a disclosure to be clear, it needs to use unambiguous language. We know based on prior guidance that the FTC believes #Ad and #Sponsored to likely be sufficiently clear, but in this most recent discussion, the FTC notes that it does not believe “#sp,” “Thanks [Brand],” and “#partner,” are sufficiently clear disclosures to consumers.
TIP: When directing influencers to make material connection disclosures, be sure that the disclosure is made upfront in the post and can be clearly understood by the consumer audience.