FTC Tips About Social Media Influencer Campaigns

FTC Social Media Influencer Campaign Tips for Marketers

Social media influencer actions and investigations by the Federal Trade Commission are on the rise. In addition the FTC’s first law enforcement action against individual influencers for misleading practices in 2017, the agency has sent numerous educational and follow-up letters to influencers and brands, reminding them that pursuant to the FTC’s Endorsement Guides, “material connections” must be clearly and conspicuously disclosed.

Tip #1 Review Updated Guidance

The FTC recently released an updated version of The FTC’s Endorsement Guides: What People are Asking. The publication answers numerous questions about the use of endorsements, including in social media. Topics that are addressed include, without limitation, tags in pictures, disclosures in Snapchat and Instagram, the use of hashtags and disclosure tools built into some platforms.

Tip #2 Know the Do’s and Don’ts for Social Media Influencers

            FTC Recommendations

• Clearly, disclose when you have a financial or family relationship with a brand
• Ensure your sponsorship disclosures are difficult to miss
• Treat sponsored tags, including tags in pictures, like any other endorsement
• On image-only platforms like Snapchat, superimpose disclosures over the images

            Practices to Avoid

• Do not assume follows know about all your brand relationships

• Do not assume that disclosures built into social media platforms are sufficient

• Do not use ambiguous disclosures like “Thanks,” #collab, #sp, #spon or #ambassador

• Do not rely on disclosures that people will see only if they click “more”

Tip #3 Clear and Conspicuous Disclosures

Always clearly disclose when you have a financial or family relationship with a brand. Never assume that everyone knows. The FTC disagrees and does not believe that approach is a good idea. Influencers should not assume that consumers know about influencer’s business relationships.

Tip #4 Platform Tools May Not be Sufficient

Never assume that using a platform’s designated disclosure tool is enough. Some platforms use disclosure tools, but the FTC does not believe that they are necessarily a sufficient method to disclose material brand connections. Always consider placement – whether the disclosure finds consumers. Consumers should not have to hunt for a disclosure. Disclosures should be difficult to miss.  An experienced social media attorney can advise on how whether specific platform tools alone are adequate.

Tip #5 Avoid Ambiguous Disclosures

Ambiguous disclosures like #thanks, #collab, #sp, #spon or #ambassador should be avoided. When disclosing a material connection to a brand, use clear and unambiguous language. Abbreviations, shorthand or arcane lingo are unlikely to communicate the disclosure effectively to consumers.

Tip #6 Hit “Em Right Between the Eyes

Recent FTC guidance sets forth that influencers should not rely upon placing disclosures after a CLICK MORE link or in another easy-to-miss location. A good rule of thumb is to consider your own viewing habits on social media. Most people do not click every CLICK MORE link. When disclosing a brand relationship, the FTC believes that the better approach is to hit ‘em right between the eyes. Addtionally, on image-only platforms, disclosures should be superimposed over the picture in a clear font that contrasts sharply with the background.

Tip #7 Consult With Experienced Counsel

An experienced FTC defense lawyer can provide additional suggestions that may help reduce the risk of attracting the FTC’s attention to a brand’s social media campaigns and the influencers with whom they work. Some preliminary suggestion include, but are not limited to:

• Implement sound contracts
• Clearly instruct influencers of legal responsibilities and prohibitions
• Implement written social media policies
• Monitor influencers
• Take and document remedial action for improper practices

The FTC will be continuing its investigation and enforcement efforts in this area and marketers would be well served to know the FTC’s Endorsement Guides and the new social media influencer campaign FAQs.

Richard B. Newman is an FTC compliance and defense attorney at Hinch Newman LLP. Follow him on LinkedIn and on Facebook.

Attorney advertising. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. Information on previous case results does not guarantee a similar future result.