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FTC Warns Influencers to be Clear About Endorsements on Social Media

Everyone who is anyone is on Instagram these days, apparently. But not all posts on the photo-sharing platform are purely organic; some result from material connections between influencer or celebrity posters and the brands or products they are endorsing. This connection is not always made clear to viewers, however, according to the Federal Trade Commission (FTC). This week, the FTC sent letters to 90 marketers and influencers, warning of the obligation to “clearly and conspicuously disclose their relationships … when promoting or endorsing products through social media.”

The FTC’s letters came after public interest groups filed a number of petitions concerning influencer advertising on Instagram. Instagram came under particular scrutiny because disclosures on some posts are available to viewers in the Instagram mobile app only after a viewer clicks on the post’s “more” button. The FTC advised recipients that disclosure of any material connection should be made clear above the “more” button, and suggested that disclosures made in a hashtag string at the end of a description was likely insufficient.

The FTC’s Endorsement Guides, which apply to both marketers and endorsers, stress that “when there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed.”

The FTC has filed complaints against a number of businesses for lack of adequate endorsement disclosures, but this is the first time warning letters have been sent to influencers directly. Both marketers and influencers need to bear in mind the importance of disclosing a material connection, and doing so in a way consumers will likely see. Marketers may wish to update their social media policies with this in mind.

© 2017 Keller and Heckman LLP

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About this Author

Sheila Millar, Keller Heckman, advertising lawyer, privacy attorney
Partner

Sheila A. Millar counsels corporate and association clients on advertising, privacy, product safety, and other public policy and regulatory compliance issues.

Ms. Millar advises clients on an array of advertising and marketing issues.  She represents clients in legislative, rulemaking and self-regulatory actions, advises on claims, and assists in developing and evaluating substantiation for claims. She also has extensive experience in privacy, data security and cybersecurity matters.  She helps clients develop website and app privacy policies,...

202-434-4646
Tracy Marshall, Keller Heckman, regulatory attorney, for-profit company lawyer
Partner

Tracy Marshall joined Keller and Heckman in 2002. She assists clients with a range of business and regulatory matters.

In the business and transactional area, Ms. Marshall advises for-profit and non-profit clients on corporate organization, operations, and governance matters, and assists clients with structuring and negotiating a variety of transactions, including purchase and sale, marketing, outsourcing, and e-commerce agreements.

In the privacy, data security, and advertising areas, she helps clients comply with privacy, data security, and consumer protection laws, including laws governing telemarketing and commercial e-mail messages, contests and sweepstakes, endorsements and testimonials, marketing to children, and data breach notification. Ms. Marshall also helps clients establish best practices for collecting, storing, sharing, and disposing of data, and manage outsourcing arrangements and transborder data flows. In addition, she assists with drafting and implementing internal privacy, data security, and breach notification policies, as well as public privacy policies and website terms and conditions. 

202-434-4234
Nathan Cardon, Keller Heckman, product safety attorney, labor lawyer
Associate

Nathan Cardon joined Keller and Heckman in 2013.  Mr. Cardon practices in the areas of product safety, privacy, and advertising.

In his product safety practice, Mr. Cardon counsels clients on risk management and product safety strategies, as well as on compliance with Consumer Product Safety Commission (CPSC) requirements, including new requirements under the Consumer Product Safety Improvement Act of 2008 (CPSIA). 

In the privacy and advertising practice, Mr. Cardon is involved in a wide variety of privacy, data...

202-434-4254