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April 21st, 2017
Honesty is Not the Same as Full Disclosure: the FTC’s Recent Letters to Influencers
The FTC staff recently sent out more than 90 letters reminding influencers and marketers that influencers should clearly and conspicuously disclose their relationship to brands when promoting or endorsing products through social media.
Remember, the fact that the influencer does in fact genuinely love your product merely reflects the basic truth-in-advertising requirement that endorsements must be the honest opinion of the endorser. Influencers still must clearly and conspicuously disclose any material connection between the influencer and the brand. That connection could be a business relationship, a family relationship, monetary payment, a gift, or a free product.
The letters (a sample of which can be viewed here) addressed the following:
- Consumers viewing Instagram posts on mobile devices typically see only the first three lines of a longer post unless they click "more," which many may not do. When making endorsements on Instagram, influencers should disclose any material connection above the "more" button.
- A disclosure among multiple tags, hashtags, or links is unlikely to be conspicuous as readers may just skip over them, especially when they appear at the end of a long post. Influencers should either put the material connection disclosure at the beginning of the post, or avoid multiple tags, hashtags or links if the material connection disclosure is placed at the end of the post.
- A disclosure like "#sp," "Thanks [Brand]," or "#partner" in an Instagram post is not sufficiently clear. Influencer should use #ad, #sponsored or craft an alternative disclosure that makes the material connection sufficiently clear.
This is the first time FTC staff has reached out directly to influencers. It's a reminder that both the influencer and the brand are responsible for failure to disclose a material connection.
For more information on the need for endorsers to adequately disclose connections, we recommend you review the FTC staff business guide FTC's Endorsement Guides: What People are Asking and our previous alert, summarizing the business guide.
If you have any questions about Guides Concerning Use of Endorsement and Testimonials in Advertising, or about any other advertising law issues, please contact Terri Seligman at (212) 826 5580 or firstname.lastname@example.org, Jeff Greenbaum at (212) 826 5525 or email@example.com, Jess Smith at (212) 705 4876 or firstname.lastname@example.org, any other member of the Frankfurt Kurnit Advertising, Marketing & Public Relations Group.
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