United States: FTC Takes Hard Line On Social Media Endorsements: Disclose, Disclose, Disclose... (It Matters Given Growing Reliance On Social Media)

Last Updated: September 19 2017
Article by Nadia G. Aram

The Federal Trade Commission (FTC) has unequivocally signaled this month that compliant endorsements on social media remain a high priority for this US consumer protection agency because endorsements carry weight and affect buying decisions. A social media endorsement can be as simple as liking, tagging or picturing a brand, or a more detailed review or shout out. However, disclosing whether the plug for the brand is potentially incentivized by a payment, free product, or family, employer or other material connection with the brand may not be quite as simple according to the FTC. Details follow, but here's the takeaway up front: For influencers, that means take care with your disclosures of your relationships with brands in the context of ever evolving social media. For advertisers, that means it may be time to update your social media policy or influencer contract, and continue to monitor that influencers comply with their disclosure obligations.

What's New?

Continuing enforcement of its Endorsement Guides, the FTC announced its first settlement with individual influencers (rather than advertisers that work with influencers). Trevor Martin and Thomas Cassell (better known online as "TmarTn" and "Syndicate") allegedly engaged in deceptive practices by failing to disclose they own and operate the online gambling service "CSGO Lotto" that they widely promoted across social media. In addition, the FTC announced it issued "warning" letters to 21 influencers from among the 90 recipients of prior "educational" letters from the FTC sent this past spring. According to the new round of letters, the FTC considers some influencers previously contacted still fail to "clearly and conspicuously" disclose their business relationship with the brands or products they promote. The warning letters ask recipients to notify FTC staff by this month's end whether they do, in fact, have a material connection with the brands/products described in the letters and, if so, how they will clearly disclose such a relationship in the future. Finally, the FTC updated its "What People Are Asking" guidance on the Endorsement Guides with new examples featuring common social media advertising channels such as Facebook, Instagram, and Snapchat, which are highlighted below.

FTC Issues Updated Endorsement Guidance, Spot Lights Proper Social Media Disclosures

While the refreshed "What People Are Asking" guidance on the Endorsement Guides (or FAQs) are not "new" guidance as far as the need to disclose an influencer's relationship with a brand, this guidance further clarifies when and how the Endorsement Guides apply across social media. Here are some important learnings:

  • Not all disclosures of an influencer's relationship with a brand are equal or adequate as far as meeting the required "clear and conspicuous" standard.

    • For example, disclosures for Snapchat and other image-only platforms should be superimposed over images, not reserved off-screen.
    • Disclosure that a post is paid using solely an "#ambassador" hashtag is probably insufficient because it could be ambiguous to consumers what that means. Using "#[brand name]-ambassador" is probably more understandable, but has to be evaluated within the context of the post overall.
    • Merely thanking the company that paid the influencer (e.g., "Thanks, [brand]") likely is insufficient because the gratitude could also come from an uncompensated satisfied customer. Providing additional information that indicates some benefit was received by the influencer (e.g., "Thanks, [brand], for the free product") may be good enough.
  • Likes, tags, pins and other subtle endorsements are endorsements. The new guidance acknowledges that some social media platforms make it difficult for paid influencers to adequately disclose their material relationships, and notes that advertisers shouldn't encourage endorsements from paid influencers using such features. However, the guidance notes that whether the FTC would take action against such endorsements would depend on the overall impression of the advertising campaign, including whether the "likes" at issue have a material impact on consumers' decisions to patronize a brand or buy a product.
  • Influencers should disclose when products are received for free, even when review of the product was not a condition of receipt.
  • Section 5 of the FTC Act, which gives the FTC its endorsement enforcement authority, applies to international influencers promoting products that are sold in the United States, if it is foreseeable that their promotion would be seen by and affect U.S. citizens.
  • Remember there is no one size fits all disclosure for relationships with a brand... How the disclosure is worded, its appearance and placement should be evaluated in the overall context of the advertising message and the particular social media platform as far as meeting the clear and conspicuous disclosure requirement.

In light of this new guidance and recent FTC activity, both advertisers and influencers should consider reviewing their social media endorsement disclosure practices and contracts with one another. The FTC has a variety of investigative and enforcement powers, and it is not generally considered desirable to become a FTC test case. Even parties that settle with the FTC (neither admitting nor denying fault) may be subject to stiff monetary penalties and long-term monitoring and audit of their advertising practices by the FTC.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.