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What are the New FTC Guidelines for Influencer Marketing?
From:
Tracy P. Jong --  Tracy Jong Law Firm Tracy P. Jong -- Tracy Jong Law Firm
For Immediate Release:
Dateline: Rochester , NY
Thursday, June 25, 2020

 

Guest Blogger: Emmeline Drake

What Does the FTC Require of Influencers? 

The FTC requires the influencer to disclose any relationship they have with the brand when providing an endorsement for that brand. These relationships aren’t limited to personal or family relationships but also include financial and employment relationships with the brand. Specifically, with financial relationships, the influencer is required to disclose the relationship if they received anything of value from the brand, this includes money, free or discounted products, or other perks. It is the influencer’s responsibility to disclose their relationship with brands when endorsing a brand’s products. The FTC provides certain guidelines for where influencers must post their disclosures, at what point in their social media post they should make the disclosure, and notes the type of language that would, and wouldn’t be appropriate to use in the disclosure.

Where to Post the Disclosure

Influencer’s disclosures on brand relationships need to be easily accessible to their audience. To do this the disclosure also needs to be difficult for the audience to miss and placed in the endorsement itself. The FTC recommends that the disclosure be placed at the beginning of the endorsement to ensure that the influencer’s audience is well aware of the influencer’s connection with the brand prior to viewing the endorsement. For endorsements made on a live-streamed video, the FTC requires the influencer to disclose their relationship with the brand often throughout the live-stream. This is so that audience members who start watching the live stream partway through are also made aware of the influencer’s relationship with the brand early on when viewing the endorsement. 

The disclosure cannot be made only in an “about me,” profile page, at the end of the endorsement, mixed in a group of hashtags or links, or anywhere a person would need to continue to click for more information or easily be missed by the audience. This doesn’t mean that brand relationships cannot ever be disclosed on influencer’s profiles or mentioned again at the end of their endorsements, but these cannot be the only places where the relationship is disclosed. 

What Needs to be In the Disclosure?

For the disclosure to be easily accessible the influencer also needs to use simple and clear language when making the disclosure. The disclosure also needs to be in the same language as the endorsement. According to the FTC statements like “Thank you’re to BRAND for the free product,” “Advertisement,” “Ad,” and “Sponsored” are acceptable so long as they are difficult for the audience to miss. On platforms that limit space, or word count (such as Twitter) influencers are allowed to use “BRAND Partner” or “BRAND Ambassador.” These statements can be hashtagged (for example #Ad, #Sponsored, #BRANDPartner) so long as these hashtags appear in the disclosure itself, and the disclosure is made in the proper place. Influencers are not required to hashtag these statements, but they are allowed to tag these statements if they want to. 

Influencers should stay away from abbreviations, and shorthand whenever possible. They also need to avoid standalone terms that don’t mention the brand. The FTC states that terms like “collab,” and “spon” are vague and can be confusing to audience members causing the audience to misinterpret the relationship the influencer has with the brand. The FTC also states that influencers should avoid a standalone “thanks” or “ambassador” in their disclosures. These standalone terms don’t mention the brand that the influencer is endorsing and therefore the audience may misinterpret the influencer’s relationship with the brand.

The FTC has produced a short video demonstrating the basics of where and how an influencer should disclose their relationship with a brand.  Click the link here to watch the video!

What Influencers Cannot Include in Their Endorsement

In addition to requiring influencers to disclose their relationships with brands, the FTC also provides a few guidelines for what influencers cannot include in the endorsement itself. Influencers are not allowed to talk about their experience with products that they haven’t tried themselves. For example, if an influencer is endorsing a brand that sells cosmetics, the influencer cannot talk about what using the product is like, or their experiences using the product if they have not tried that particular product. Influencers also cannot say that the products they are paid to talk about are great if their opinions are the opposite. If the influencer feels that the product they are supposed to endorse is not a good product they cannot tell their audience that the product is terrific. Finally, influencers are also not allowed to make claims about products that would require proof that they don’t have. For example, an influencer cannot make up a claim that a particular product can treat a health condition as that would require the advertiser to provide scientific proof (that the advertiser doesn’t have) that the product can treat that health condition. 

The FTC guidelines on influencer marketing only regulate what influencers can and cannot do when endorsing products not what you as a business can and cannot do. While you and your business don’t need to make sure that the influencer follows these guidelines it is in the best interest for you as a business looking to advertise and the influencer themselves to make sure that these guidelines are followed. You don’t need to dictate what the influencer does when making their endorsements, but you can share what you know about the FTC’s guidelines with the influencer you work with. Let the influencer know that they need to disclose their relationship with your brand and that that disclosure needs to be easily accessible to their audience, and what the FTC prevents them from including in their endorsement of your product. Making sure the influencer knows these guidelines helps to protects their advertisement of your product.
BIO: Emmeline Drake is a student at Nazareth College, she is majoring in Music Business and minoring in Legal Studies and will be graduating in December of 2020. She is pursuing a career in law and wants to practice intellectual property law one day. She can be reached by email at: emmelinedrake89@gmail.com

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