The Scoop on Social Media Influencer Disclosure Requirements
Under FTC law, influencers have a legal obligation to clearly and conspicuously disclose their material connection to the products, services, brands and/or companies they promote in their social media feeds. But when does that legal obligation kick in and how does one satisfy it?
TINA.org sifted through key FTC enforcement actions, presentations and publications — including the FTC’s Endorsement Guides: What People Are Asking and the FTC’s .com Disclosures: How to Make Effective Disclosures in Digital Advertising — to get the scoop on what the FTC requires.
1. When is a social media influencer “endorsing” a product (service, brand or company)?
An influencer is deemed to be endorsing a product any time they post something about a product that the audience may think conveys their opinions or beliefs about the product, even if the company or brand didn’t direct the person to publish the post. Examples include:
- Posting an image of a product (even without saying anything about it)
- Tagging the company or brand (even without saying something specific about the company or brand)
- Giving a shoutout to a product in the photo caption (even if the image does not feature or tag the product)
Disclosure is only needed when there is a material connection between the influencer and the referenced product. Organic posts, where there is no material connection, do not need disclosures.
2. What constitutes a material connection that needs to be disclosed?
A material connection for disclosure purposes is any connection that might affect the weight or credibility that consumers give the endorsement.
Such connections include, but are not limited to:
- Monetary payments or gift cards
- Employee or business relationship
- Family relationships
- Arms-length business deals
- Receiving free or discounted products or services
- Chance to win a significant prize or sweepstakes
- Chance to appear in a TV commercial
3. When does that material connection need to be disclosed?
Always. An influencer has to clearly and conspicuously disclose their material connection in each and every post that endorses the product (service, brand or company) because readers may not see other places that include such a disclosure.
There are two exceptions to this rule: (1) no disclosure is needed if everybody viewing the post knows it’s an ad; and (2) if it is so well-known that the influencer is a spokesperson for the product or company, then a disclosure isn’t needed. Even then, the FTC recommends including a disclosure since it can be tricky to determine whether followers are aware of the material connection or not.
4. If a clear disclosure is needed, what should it say?
The disclosure must clearly communicate to the audience that the influencer has a material connection to the product (service, brand or company) endorsed in the post.
Examples of disclosure language that works, according to the FTC:
- #ad or Ad:
- Paid ad
- Thanks [COMPANY NAME] for the free product
- Thanks [COMPANY NAME] for the gift of [NAME] product
- #[COMPANY NAME]_Ambassador
Examples of disclosures that don’t cut it, according to the FTC:
- #[COMPANY NAME]ad (such as #cirocad, where Ciroc is the name of the company)
- Thank you [COMPANY NAME] (without specifically saying what they are thanking the company for)
5. If a conspicuous disclosure is needed, where should it go?
Unfortunately, the FTC does not specifically dictate where to place the disclosure. But here’s what it does say:
- The disclosure needs to stand out and be easily noticed. Consumers should not have to look for it. As such, disclosures in the middle or at the end of a caption, or surrounded by links and hashtags, are less likely to be effective than disclosures at the beginning of a post.
- The disclosure should appear without having to click on “more” to expand the full caption box. To ensure this doesn’t happen, the FTC has recommended placing disclosures within the first three lines of text.
- With respect to videos and images that do not have separate captions alongside them, influencers should superimpose a clear, easy-to-notice disclosure on the videos or images.
- If a social media post includes a video, it is not sufficient to only include an audio disclosure as many users watch videos without sound.
- Built-in disclosure tools on social media platforms, such as “Paid Partnership” at the top of a post, are not necessarily adequate because of the differences in various platforms and ways in which consumers use particular platforms, among other reasons.
So what’s an influencer to do?
Here at TINA.org we think the answer is pretty simply – just #ad it.
- If the endorsement is found in a narrative, #ad it to the very beginning of the post.
- If the endorsement is in a video, #ad it to the entire video
- Endorsement in a picture, #ad it to the picture
That’s a clear, simple solution to an ambiguous, complicated disclosure problem, and it will likely ensure that no matter what electronic gadget or gizmo a consumer is using they will be able to see the disclosure.