In November, we posted that four consumer groups had sent letters to FTC, encouraging the agency to investigate and bring enforcement actions regarding the use of influencers on Instagram. In April, the FTC responded by sending more than 90 letters to companies and influencers, reminding the recipients of their legal obligations. Now, the consumer groups have again contacted the FTC to complain that the agency needs to do more.
According to the latest letter, the groups tracked the 46 influencers who received letters from FTC to determine if the letters had
been effective. According the survey, only one of them consistently used “proper disclosures” for paid posts. Although some influencers did occasionally post sponsored content using proper disclosures, some posts allegedly failed to comply with legal requirements. The groups concluded that the FTC’s letters were ineffective and pushed for more regulation.
The groups want the FTC to “bring enforcement actions and seek penalties for posting nondisclosed sponsored content, especially for influencers and brands that are repeat offenders.” In addition, the groups want the FTC to “work with Instagram to develop a system that makes it easy to denote paid posts consistent with FTC guidelines.” We noted last month that Instagram is already working on such a system, but the groups don’t think that it’s sufficiently robust.
As we’ve noted before, both the groups’ letters to the FTC and the FTC’s warning letters swept too broadly and included a number of posts that were not incentivized. (Click here for a BuzzFeed article with some examples.) Nevertheless, there are various examples in the latest letter that are potentially problematic and potential targets for enforcement.
If you haven’t evaluated how your company works with influencer recently, now may be a good time to do that.