If your company uses social media influencers to advertise its products and services, you will want to be aware of some practical advice from the United States Federal Trade Commission (FTC).
On November 5, 2019, the FTC released a publication to provide additional guidance for social media influencers The guide discusses how and when to disclose sponsorships in posts. The FTC released both the eight page guide, Disclosures 101 for Social Media Influencers, see here and an informative video which can be seen here.
The new releases help social media influencers understand and apply the FTC's prior guidance in the area, namely, the FTC Endorsement Guides (which can be found here) and its "What People are Asking" guidance which can be found here.
The Disclosures 101 publication as well as the video are resources that Brands can give to social media influencers to help them understand their obligation to disclose as a useful compliance and training aid. The brochure is written in easy-to-understand language that will be helpful to social media influencers and marketing departments alike.
The brochure explains that the social media influencer must disclose when it has:
- "any financial, employment, personal, or family relationship with a brand.
- Financial relationships aren’t limited to money. Disclose the relationship if you got anything of value to mention a product.
- If a brand gives you free or discounted products or other perks and then you mention one of its products, make a disclosure even if you weren’t asked to mention that product.
- Don’t assume your followers already know about your brand relationships. Make disclosures even if you think your evaluations are unbiased.
- Keep in mind that tags, likes, pins, and similar ways of showing you like a brand or product are endorsements.
- If posting from abroad, U.S. law applies if it’s reasonably foreseeable that the post will aﬀect U.S. consumers. Foreign laws might also apply."
When disclosing, the brochure explains that the disclosures must be placed so that consumers will see and understand them and so that they are hard to miss:
- "The disclosure should be placed with the endorsement message itself.
- Disclosures are likely to be missed if they appear only on an 'About Me' or profile page, at the end of posts or videos, or anywhere that requires a person to click 'More'.
- Don’t mix your disclosure into a group of hashtags or links."
Depending on the platform or the media, special consideration with regard to the disclosure may be required, for example:
- "If your endorsement is in a picture on a platform like Snapchat and Instagram Stories, superimpose the disclosure over the picture and make sure viewers have enough time to notice and read it.
- If making an endorsement in a video, the disclosure should be in the video and not just in the description uploaded with the video. Viewers are more likely to notice disclosures made in both audio and video. Some viewers may watch without sound and others may not notice superimposed words.
- If making an endorsement in a live stream, the disclosure should be repeated periodically so viewers who only see part of the stream will get the disclosure."
The brochure also repeats and summarizes some of the core principles of the FTC's Endorsement Guides, e.g.:
- "You can’t talk about your experience with a product you haven’t tried.
- If you’re paid to talk about a product and thought it was terrible, you can’t say it’s terrific.
- You can’t make up claims about a product that would require proof the advertiser doesn’t have – such as scientific proof that a product can treat a health condition."
If you have any questions about how these releases apply to your company's activities on social media, please contact your Baker attorney or any of the contacts opposite.