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Brands Beware!!!! FTC Scrutinizing Influencer Posts for Compliance with Endorsement Guides

In response to a petition from a coalition of consumer groups last year complaining about the need for disclosures by social media influencers, the FTC recently announced on April 19, 2017 that it had issued more than ninety letters reminding influencers and brands that “if there is a ‘material connection’ between an endorser and the marketer of a product – in other words, a connection that might affect the weight or credibility that consumers give the endorsement – that connection should be clearly and conspicuously disclosed, unless the connection is already clear from the context of the communication containing the endorsement.”  The FTC explained that material connections could “consist of a business or family relationship, monetary payment, or the provision of free products from the endorser.” 

The FTC raised specific posts with influencers and marketers that were featured in influencer posts.  The FTC letter made clear that when disclosures are made they need to be made so that consumers can see them readily at the top of a post so that consumers will not skip over or miss them, meaning that a disclosure placed at the end of a string or below a “more” button  is not likely to be conspicuous.

The FTC noted in its press release that “particular disclosures that are not sufficiently clear, pointing out that “many consumers will not understand a disclosure like ‘#sp,’ ‘Thanks [brand],’ or ‘#partner’” to mean that a post is sponsored.  The FTC letters included copies of the Endorsement Guides and the publication “FTC’s Endorsement Guides: What People are Asking”, both of which are useful for background information.  The names of the influencers and brands were not publicly released.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.


About this Author

Theodore Max, Attorney, Sheppard Mullin, Entertainment, Technology, Advertising

Theodore C. Max is a member of the Entertainment, Technology and Advertising and Intellectual Property Practice Groups in the New York office, where he focuses on counseling clients on intellectual property issues and litigation. He is co-leader of the firm's Fashion and Apparel team. Mr. Max combines his skill and experience as a trial attorney with his knowledge of copyright, trademark and intellectual property law in servicing the firm's diverse clientele.