On November 4, 2019, the U.S. Federal Trade Commission (“FTC”) issued guidance for social media influencers to help them comply with FTC requirements relating to endorsements and disclosures. We have previously covered FTC action and guidance (including advisory letters) in this area, but the FTC has refined and updated its advice a bit:
- The FTC requires that a social media influencer disclose to viewers a “material connection” to a brand or product that the influencer is reviewing or endorsing. The FTC now defines “material connection” to include “financial, employment, personal, or family relationship with the brand.” The linked advisory letters contain many examples where the FTC found these types of connections were not disclosed.
- Conversely, the FTC advises that if the influencer does not have such a relationship, there is NO affirmative obligation to disclose that fact (i.e., the influencer does NOT have to say “I paid for this” or anything similar).
- The FTC also reminds influencers that “tags, like, pins, and similar ways of showing you like a brand or product are endorsements.” Our long-time readers may remember the FTC’s first action in this space (linked above) where the FTC found in 2014 that a “pin” on Pinterest was an “endorsement.”
- Given the international reach of the Internet, the FTC states that U.S. law will apply to the influencer’s endorsement “if it’s reasonably foreseeable that the post will affect U.S. consumers.” Of course, foreign laws may also apply to the post.
- The FTC also updated its advice for a relatively new form of advertising and sharing content: live streaming. The FTC advises that any required disclosures “should be repeated periodically so viewers who only see part of the stream will get the disclosures.”
The FTC’s guidance also includes some do’s and don’ts for social media influencers:
- “Use simple and clear language”
- Place the simple explanation/disclosure in a way that’s hard to miss.
- You can use terms like “advertisement” or “ad” or “sponsored” to indicate that there is a material connection.
a. Use terms like “sp” or “spon” or “collab” or “thanks” or “ambassador”—it’s not clear to consumers what is meant by these terms.
b. “Talk about your experience with a product you haven’t tried.”
c. “If you’re paid to talk about a product and thought it was terrible, you can’t say it’s terrific.”
d. “You can’t make up claims about a product that would require proof the advertiser doesn’t have—such as scientific proof that a product can treat a health condition”
This last point may be the trickiest one for the influencers, so influencers may wish to ask the product manufacturers for information about any scientific claims relating to the product. Better yet, the social media influencer could simply relay the influencer’s own experience with the product.