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Influencers: FTC Says Ignorance is NOT Bliss!

Adapted from an article originally posted on our blog - Thu, Sep 14, 2017 @ 09:09 AM by Jamie Rademacher

DISCLAIMER:  All content is for informational purposes only. Analysis and guidance are based on personal interpretations and in no way, represent legal advice.

As most of you may have heard by now, last week the Federal Trade Commission announced that it settled a case against two social media influencers who failed to include significant disclosure information in their endorsements. What makes this announcement so distinct is this is the first time we have seen complaints filed against the social media influencers themselves. Typically, in the past, we have seen the FTC go after brands (advertisers) as opposed to the actual third party (publisher) that is being paid to promote the brand.

Additionally, the Federal Trade Commission issued an updated version of their staff guidance document, The FTC’s Endorsement Guides: What People are Asking for social media influencers and endorsers. The document hasn’t been updated since 2015; this revision includes more than 20 additional questions and answers addressing social media influencers and marketers. The updates include more examples of when a disclosure might be needed on specific social media platforms, suggested terms that consumers can understand to denote that a post is sponsored, and how and when to disclose receiving free items such as travel and products.  

Affiliate Marketing

The Endorsement Guides FAQs also reference affiliate marketing, providing details on how and when to disclose a material connection between an affiliate/endorser and an advertiser. It even provides suggested language to use such as, “I get commissions for purchases made through links in this post.” Below are a few additional callouts referenced in the FTC’s Endorsement Guides: What People Are Asking:

  • Disclosures in “About Us,” “General Info,” “Terms of Service,” or “Privacy Policy” sections might not meet the criteria for clear and conspicuous.
  • Terms like “affiliate links” might not be understood by a minority of reasonable consumers to mean there is a material connection.
  • A “Buy now” button might not be understood that the person placing the link is getting paid for purchases through the link.
  • If an endorser includes links to an advertiser for the sake of convenience to the readers and is not getting paid for it, there’s no need for a disclosure.
  • If a publisher's affiliate links appear on someone else’s website or in user comments, a disclosure should be included anytime a product is endorsed and the publisher receives compensation.

Brand Quality expert Jen Moor has teamed up with the Performance Marketing Association (PMA) to write a helpful compliance guide titled “Compliance Guide for Influencer Marketing.” This guide will help answer any questions about the FTC guidelines surrounding influencer marketing and will be especially helpful for advertisers or publishers not already familiar with compliance requirements.

 You can download the free whitepaper from the PMA here.


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