The Federal Trade Commission recently sent more than 90 letters to celebrities, athletes, and other influencers reminding them that brand endorsements made in social media posts must comply with the FTC’s Endorsement Guides. The letters reminded social media influencers – individuals or groups recruited to promote a brand’s products or services – that social media endorsements must clearly and conspicuously disclose “material connections” between the influencer and the brand, and focused on the need to disclose such connection in Instagram posts.
Under the FTC’s Endorsement Guides, any “material connection” between an influencer and the brand being promoted must be “clearly and conspicuously” disclosed to consumers. A “material connection” is any connection that could reasonably affect the weight given to the advertisement by a consumer, and can include a business or family relationship, monetary payment, or free product given to the influencer. The Endorsement Guides apply to advertising through all media, including on social media platforms.
The letters described above came after the agency reviewed numerous posts by influencers on Instagram, the popular social media platform that allows users to post photos or videos along with a caption, and may signal increased enforcement efforts on that platform. In addition to the basic requirement of disclosing material connections, the letters addressed some issues specific to Instagram. For one, the FTC noted that longer Instagram captions are automatically truncated, showing only the first three lines and requiring users to click “more” to view the full caption. The agency made clear that material connections should be disclosed before the truncated portion of the post, so they are visible to users who do not select the “more” button. The agency also disfavors disclosures made within long strings of hashtags, tags, or links. Such disclosures, the letters claimed, are unlikely to be clear and conspicuous because viewers may simply skip over them. Finally, some of the letters pointed out specific disclosures that are not acceptable. For example, the FTC explained that the hashtags “#sp,” which stands for “sponsored post,” and “#partner” would not sufficiently disclose that the poster is a recruited influencer.
Arent Fox’s Advertising & Promotions group monitors social media and advertising issues. If you have any questions, please contact Sarah L. Bruno, Matthew R. Mills, Thorne Maginnis, or the Arent Fox professional who usually handles your matters.