Marketers and Influencers: How Should You Make Disclosures Online?

September 15, 2017

The Federal Trade Commission (FTC) recently issued an updated version of its Endorsement Guides, which includes important information about the FTC’s current thoughts on when and how material connections between brands and endorsers should be disclosed.

In yesterday’s post, I discussed some background information about the theory behind FTC rules and endorsements and summarized some of the key points from the FTC’s guidance on when disclosures should be made. Below is a discussion of a few key points from the Endorsement Guides about how disclosures should be made online.

 How should a disclosure be made on social media?

 It depends, but it should be clearly and prominently displayed, and easily noticed and understood by your audience. You should not assume that your audience knows that you have a financial or family relationship with a brand.

This is more of an art than a science – essentially, you must clearly and prominently communicate in the social media post itself the nature of the relationship. The FTC has stated that it is insufficient to have a single disclosure on your home page or another page on your site that “many of the products I discuss on this site are provided to me free by their manufacturers” because people visiting your site may not see the disclosure.

Further, you can’t hide the disclosure in the post. In the updated Endorsement Guide, the FTC uses the example of the text description associated with an Instagram post, because descriptions more than four lines are truncated with only the first three lines displayed. Therefore, in order for a disclosure to be clear and prominent in the context of an Instagram post, the disclosure must be in the first three lines.

Do you need to disclose when using Snapchat or Instagram Stories?

Yes, you need to disclose even on Snapchat or Instagram Stories. The disclosure should be superimposed on the images or videos and should be easy to notice and read in the time and context that your followers have to look at the post.

I see Instagram Stories all the time from influencers that fail to disclose any financial relationship whatsoever, despite knowing (through commercials and other advertisements) that the influencer is sponsored by the company whose products they are promoting.

Is the FTC paying attention to influencers?

Yes. In April of this year, the FTC sent more than 90 educational letters to influencers (including celebrities and athletes, among others) and brands to remind them to disclose material connections a brand along with endorsements. Recently, the FTC followed up with 21 of those influencers, citing specific posts that may be in violation of the Endorsement Guides. I expect this trend to continue, so it is important stay current on the FTC’s rules and guidance on how to comply to avoid problems.

Navigating FTC disclosure requirements is a complex process that should be undertaken with care to avoid issues with the FTC or the brands that you are working with. If you have questions about how FTC regulations apply to you, your business or your social media presence, you should contact your attorney to help you navigate these issues.

Matt Landis is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from Widener Commonwealth University School of Law and works regularly with business owners and entrepreneurs.