Let’s be honest, we’ve all seen our fair share of FTC disclosure fails within the influencer marketing space. With the new year right around the corner, we wanted to make sure you’re equipped with this simple guide to FTC disclosures so you can kick-off your 2021 brand partnerships on the right foot.
Disclaimer: Please note that this blog and the attached guide should be used for informational purposes only and neither should be construed as providing legal advice or opinion. Do not rely on the information as an alternative to legal advice from your attorney, who should be consulted for any of your specific legal questions. The legal information below is provided “as is” without any representations or warranties.
And now that we’ve gotten that out of the way, let’s get to it.
A Quick History of FTC
The FTC, or the Federal Trade Commission, and was established through the FTC Act of 1914, aiming to prevent “unfair or deceptive acts or practices in the marketplace” — ensuring that consumers have constant access to accurate and trustworthy information about the products and services they purchase (or wish to purchase). With this mission comes great responsibility for the FTC to provide brand marketers and creators with regulations to ensure they advertise to consumers in an honest and transparent way.
You might be asking — what’s happened in recent years that’s important to note when it comes to the FTC and influencer marketing? Here’s a timeline covering a few of the major releases that the FTC has announced in the past 20 years:
- May 2000: FTC releases .com disclosures
- October 2009: FTC releases Guides Concerning the Use of Endorsements and Testimonials in Advertising
- May 2011: FTC updates guidelines to reflect changes online and in digital advertising, seeking input and public comment
- March 2013: FTC updates .com disclosures to include mobile and account for new social media advertising
- 2017: The FTC Endorsement Guides: What People Are Asking is updated
- November 2019: FTC releases Advertising Disclosures Guidance for Online Influencers
The Basics: How to Properly Disclose
Ultimately, here’s what it comes down to: Partnerships in influencer marketing need to be clear and conspicuous. Michael Ostheimer, a deputy within FTC’s Ad Practices Division breaks it down perfectly, saying that: “If consumers don’t read the words, then there is no effective disclosure… If you have seven other hashtags at the end of a tweet and it’s mixed up with all these other things, it’s easy for consumers to skip over that. The real test is, did consumers read it and comprehend it?”
Simple, right? Sure is! As a general rule of thumb: If there is any connection between a brand/company/agency/partner and the endorser that would impact how people view the product or service being promoted, it needs to be disclosed — clearly and conspicuously. If any exchange of value occurs — whether that’s in the form of monetary compensation, product, experiences, or anything of value to the endorser — it needs to be disclosed.
So who’s responsible for disclosing then? Everyone involved in the partnership is responsible for making sure that proper FTC disclosures are present in the endorsement. Meaning that the brand or company, the agency or partner who are working on behalf of the brand/company, and of course, the influencer themself (or anyone who represents the influencer). When in doubt, always disclose and/or talk with your legal counsel.
Disclosures by Channels
Here are some simple rules to follow when it comes to disclosing on each social channel:
Blog: At the beginning or end of the endorsement
Twitter, Facebook, Instagram, Pinterest, TikTok:
- At the beginning or end of the endorsement message
- Clearly prominent – i.e. not buried within other hashtags
- Image-based content such as Instagram Stories needs to include text overlay that is visible and clear – i.e. not in tiny font or hidden some way
Video Content (i.e. YouTube):
- Disclosure must be verbally stated
- At the beginning of the video/endorsement
- If the video is long enough that consumers might join in the middle, the verbal disclosure should be repeated throughout
Live Stream Content (i.e. Twitch):
- Disclosure must be verbally stated at the beginning of the stream
- If possible, there should be text overlay throughout the stream
- As with video, the disclosure should be repeated as necessary for any consumers attending at different points of the stream
Affiliate Links: Before the consumer clicks through
- At the beginning or end of the call to action
- At the beginning or end of the entry message
Ok, so now that we’ve learned about all things FTC, let’s do a quick check. If a creator is sent a free product from a brand, but was not paid to post about it, what should the influencer do?
If you were just thinking they should disclose, that’s correct!
There are so many cases of improper disclosure we have seen in the news and beyond, so always remember – when in doubt disclose and/or consult your legal counsel!
Click here to access our full FTC Disclosures guide, which includes more example disclosures and endorsements to test your knowledge along with quick tips on how to guide influencers on this important subject!