In a publication released on November 5, 2019, the Federal Trade Commission (FTC) has clarified the rules regarding influencers and truth-in-advertising. “Disclosures 101 for Social Media Influencers” has provided new guidance on how influencers should appropriately disclose that their post, tweet, or Instagram pic is actually an advertisement.

Disclosures 101 for Social Media Influencers

Typically Instagram or Facebook influencers would post a beautiful picture of a new outfit, at a new restaurant, or with a new beauty product. After a whole host of clever hashtags, and the very bottom would be the hashtag #ad. This hashtag was their way of indicating that the entire post, photo, comments, and clever hashtags were all an elaborate advertisement for which they were likely paid handsomely.

The new“Disclosures 101 for Social Media Influencers”has now offered new guidance on what an influencer must do to disclose that he or she is not just sharing a friendly tip, but rather getting paid to advertise a product, location, or service.

The new guidance specifically states the following for an influencer:

  • If you endorse a product through social media, you must make the business relationship obvious, and must also make it obvious that there is a financial relationship for which you are being paid or given a free or discounted product for the promotion.
  • Disclosures must be made if you have any financial, employment, personal, or family relationship with a brand.
  • Any tag, like, pin, or other way of showing you like a product is an endorsement.
  • You must place the endorsement in a place so that it is hard to miss. This can be either within the message itself or somewhere separate. The disclosure can not be in the middle of many other hashtags or links. The disclosure must be superimposed over a picture on a platform like Snapchat.
  • If the endorsement is in a video, the disclosure must be in the video itself, and not just in the description at the bottom.
  • If the endorsement is in a live stream, the disclosure must be repeated periodically so new viewers can have an opportunity to hear it.

Things Influencers can Not do

Along with the new guidance that imposes stricter regulations on influencers on social media, and requires them to do more disclosures proactively, there are also several things that a social media influencer can not do which include the following:

  • Talk about a product if you have never tried it.
  • Talk about a product and say it was great if you thought it was terrible.
  • Make up claims about a product that would require some sort of proof that does not exist. For example, you can’t claim that a product can help someone lose weight or treat a medical condition if there is no evidence of that claim.

FTC Guidance

This new guidance does not hold the force of law, but it can help influencers stay within the law, and also show them the direction the FTC plans to go regarding disclosure requirements for influencers both now and in the future.

Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.