The FTC comes out with first user-friendly disclosure guide for influencers

The Federal Trade Commission has tried for years now to patrol the wild west of influencer marketing. This time, it’s going straight to the source and appealing directly to the influencer mindset. 

On Tuesday, the FTC came out with a new ad disclosure guide for influencers. “Disclosures 101 for Social Media Influencers” outlines when and how influencers should disclose their partnerships with brands, regardless of whether or not the relationship includes payment. 

The guidelines themselves are the same ones the FTC has previously shared, but this time the regulator has made its guide more user-friendly with condensed language, fresh examples, and photos and videos intended for sharing. The previous guide was reminiscent of a court document, with amendments and lists of examples that pertain more to companies approaching influencer marketing, rather than influencers posting on behalf of brands. It’s something companies might have their lawyers shift through, but an influencer from the world of quippy posts is unlikely to scroll through its pages for information and guidance.  

“We are trying to make the guide more influencer-friendly,” says Michael Ostheimer, attorney in the division of advertising practices at the FTC. “Many consumers rely on influencers for their purchasing decisions. We want to do everything possible to ensure that experience is transparent.”  

Osthemier says the FTC pulled the most salient points from its Revised Endorsement and Testimonial Guides, which were first composed in 2009 to take into consideration the rise of influencer marketing, and have since been updated twice. What was a 12-page document has become an eight-page resource that summarizes the language into clear wording and examples. The FTC has placed the guide on a new webpage alongside short videos, which it is sharing on its Twitter and YouTube channels to promote the document. 

“This is an attempt to reach the influencer, [that the FTC] hasn’t quite done before,” says Phyllis H. Marcus, an attorney with law firm Hunton Andrews Kurth and previously an attorney with the FTC. “It’s handy, boiled-down advice that is very specific.” She believes many brands will start attaching the new guide in the appendixes of their influencer agreements since she has seen a lot of brands already including their own boiled down versions of the FTC guidelines.   

Marcus points out nuances in the guide that she says were not as obvious in the previous one. For one thing, she says, the new guide does a better job at laying out the fact that an influencer does not have to be paid in order to be expected to reveal their relationship with a brand. The new guide states: “Disclose when you have any financial, employment, personal or family relationship with a brand,” and that “financial relationships aren’t limited to money. Disclose the relationship if you got anything of value to mention a product,” which the guide states includes free, discounted products and perks.

Marcus also says the “influencer-friendly” version does a better job with laying out how to disclose partnerships with new examples like superimposing disclosures over pictures on Instagram Stories and Snapchat and repeating a disclosure during a live stream. It also states hashtags like #ad and #sponsored are fine (but not necessary), and to stay away from abbreviations like “spon.” 

Osthemier admits that since nearly everyone on social media could be considered an influencer these days, it’s nearly impossible to police all cases of deception. In a new report released Tuesday, Morning Consult found that 61 percent of young Americans (out of a survey of more than 2,000 13 to 38 year-olds) are likely to post organically about brands they like. This makes it difficult to understand who is being paid for what. The report found only 10 percent place “a lot” of trust in influencers’ product promotions, while 39 percent say they have “some” trust.

FTC's website itself makes it clear that it falls on the influencer to be familiar with the guides and the law. “As an influencer, it’s your responsibility to make these disclosures, to be familiar with the Endorsement Guides, and to comply with laws against deceptive ads. Don’t rely on others to do it for you,” reads the new webpage. 

Since 2016, the FTC has only brought five cases against influencers for deceptive marketing, according to Osthemier. It's first came in 2017 when it cahrged two popular YouTubers of failing to disclose owning an online gambling service they were endorsing. “Influencer marketing is too widespread for law enforcement alone,” he says.