Though the FTC updated its guidelines in June to include the rule that influencers disclose sponsorships in both the visual and audio elements of a TikTok video or Instagram Reel, few brands have required creators to include overlaid text in their sponsored videos. Some brands have even pushed back against the requirement for creators to verbally acknowledge their post is sponsored, said Jennifer Quigley-Jones, founder and CEO of influencer marketing agency Digital Voices.
That resistance to the FTC guidelines is particularly strong on TikTok, where creators’ sponsored content could just be set against music or a trending sound and a verbal ad disclosure would be jarring and bring the video closer to a blatant advertisement, Quigley-Jones said. Since the FTC’s June update to its endorsement guidelines, the agency has frequently had to debate with clients about the necessity of including visual and verbal disclosures in their influencer partners’ video content, she said.
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Most of their clients have heeded the agency’s advice and added the necessary disclosures to avoid legal issues, but “one brand we worked with agreed to a contractual amendment where they agreed to take on any liability,” Quigley-Jones said.
“They were like, ‘We'll give you an exemption because we know we’ve pushed back on this level of regulation,’” she said. “It was such an interesting negotiation, because if a brand gets in trouble for a campaign, it could reflect badly on the agency. So, when a brand is reluctant, we normally insist on it, but we got to a stage with them where they were like, ‘We don't want the content going out looking like this at all.’”
That brand, in particular, was concerned the sponsored post would “look too different from [the influencer’s] normal content” and perform poorly as a result, Quigley-Jones added. And that concern may be a valid one. Over the past two years, several alcohol brands have seen a sharp drop in engagement on sponsored Instagram posts after the Distilled Spirits Council of the United States—a trade association whose members include Campari Group, Diageo and Constellation Brands—updated its responsible advertising code to require influencers to include “social responsibility statements” at the beginning of their captions of any sponsored post, said Permele Doyle, founder and president of influencer marketing agency Billion Dollar Boy.
“Now, we have to account for a big drop in the engagement on creator content when working with alcohol brands,” she said. “And [the disclosure] isn’t actually even in the video.”
Brands such as Le Creuset, though, aren’t anticipating any significant changes to their influencer marketing strategy in light of the FTC’s seemingly stricter enforcement of its endorsement guidelines. Much of Le Cruset’s content made by creators is posted on the cookware brand’s own social media channels, rather than the influencers’ accounts, said Rachel Coffey, the brand’s manager of social media marketing—and influencer content shared to a brand’s channel isn’t subjected to the same endorsement guidelines as a sponsored post would be.