The FTC recently sent letters directly to 45 influencers warning that they either failed to disclose their paid connection to a brand or did so in a way that was not clear to consumers. The FTC’s press release is available here and our blogs about the sweep available here and here. A sample letter to influencers is available here. The press reports that 90 letters have been sent, but we know that the letters related to 45 different influencer campaigns and in each case the FTC sent a letter to the brand advertiser and the influencer. The influencers who received the letters range from top Hollywood talent to smaller YouTubers. In addition, while this is not public, the FTC has current pending investigations against individual influencers. This is the first time the FTC has focused on influencers using social media rather than only focusing on the brands or agencies behind the campaigns. And we expect that this is just the start and that we will see active enforcement against at least some influencers.
What is this all about? The FTC believes if influencers are promoting a product or service and are paid to do so, they need to disclose this fact. The FTC is concerned that consumers might read an endorsement and be moved to buy the product but would not have done so if they knew the influencer was really a brand spokesperson. More of when they expect disclosures and how they should be done can be found in the FTC’s Endorsement Guides FAQs and Native Advertising Guide.
What Should You Do If You Got a Letter? We recommend reaching out to us or to another lawyer who practices routinely before the FTC in this area. The letters do not require any engagement or follow up, but it is wise to make contact with the FTC through counsel and either clear up any misconceptions about the campaign or tell them how you fixed the issues that they identified. The FTC employs many summer interns and they will be engaged in further social media sweeps. Getting a letter means you are on the FTC’s radar and now is your time to act to make sure this is your last such communication from the FTC?
What Should You Do If You Did Not Get a Letter? Take a hard look at your paid social posts to make sure you have a disclosure and it is in the right place. What does this mean? Likely if you are using #ad, #paid, or #sponsored, this is acceptable. Other disclosures might be acceptable but need to be reviewed on a case by case basis and whether they are sufficient will vary depending on the social platform and the audience. The FTC does not like shorthand disclosures like #spon or #sp or vague words like #partner or #Thanks[Brand]. Where the disclosure is placed is key, as well. If your disclosure is at the beginning of a post, that is acceptable. The FTC has concerns if your disclosure is at the end of a post and in a string of other hashtag disclosures where followers might miss it. The FTC also has concerns if a follower needs to scroll or “read more” to see the disclosure. If you are unsure, please let us know and we are happy to review your paid campaigns and give specific guidance or answer any general questions you might have.