INFLUENCER ADVERTISING: DO'S, DON'TS, AND FTC DISCLOSURES
Last updated: January 20, 2022
#SponCon, #Ad, and #Partner posts seem to be everywhere these days. There are 3 big myths about the who and the what related to influencer advertising and #sponsoredcontent and required disclosures. We’re breaking them down for you today.
Influencer Advertising & legal requirements: why are blogger and brand disclosures important?
In short, it all goes back to consumer transparency. Consumers have a right to know in an era of digital promotion what is “organic” and promoted because someone genuinely believes in something, or if they are reviewing, sharing, and promoting because they are incentivized to do so. And moreover, it is illegal not to disclose. That’s right, it is not just unethical to improperly disclose. It breaks the Federal Trade Commission Act Endorsement Guidelines. Let’s be perfectly clear: improper disclosure in influencer advertising and sponsored content is a crime, and you can be reported (anonymously, by anyone), and held accountable through a series of hefty fines. So let’s help you get it right.
MYTH #1: ONLY BLOGGERS ARE REQUIRED TO DISCLOSE THE RELATIONSHIP, AND ONLY ACTUAL PRODUCTS COUNT.
False, and false. Brands and the blogger/influencer/influencer agency of record can be held legally accountable for the failure to disclose. In a letter to marketers and brands, they state they following language, “The Endorsement Guides apply to marketers and endorsers (emphasis my own). FTC staff guidance makes clear that marketers should advise endorsers of their disclosure responsibilities and should monitor their endorsements to ensure that appropriate disclosures are made.” Bloggers and influencers are required to disclose, and the brand is required to hold them accountable.
MYTH #2: YOU ONLY HAVE TO DISCLOSE IF YOU’RE GETTING PAID ACTUAL CASH.
What actually requires disclosure for sponsored content? “Anything of material nature”, says the FTC. “For purposes of this part, the term product includes any product, service, company or industry.” This includes free products, free dinners, discounts, commissions, affiliate credits, trips, flights, and comped experiences as a result of the relationship with the brand. You’re going on a free tour of a city in exchange for a review? Requires disclosure. Getting dinner and drinks comped to attend an opening in the city? Requires disclosure. You make 10% on anything purchased? Promoting this product gets you a discount? Still requires a disclosure. [You get it—I hope!) If you benefit financially or otherwise from the brand partnership, and you probably do because why else would you or your clients be doing it, then it requires you to be upfront about it. End of story.
MYTH #3: A #SPON OR #PARTNER IN THE POST CAPTION IS ENOUGH TO NOTE THE NATURE OF THE ADVERTISING RELATIONSHIP.
The FTC is pretty gray here here. “… particular disclosures that are not sufficiently clear, pointing out that many consumers will not understand a disclosure like “#sp,” “Thanks [Brand],” or “#partner” in an Instagram post to mean that the post is sponsored.” They suggest that even if you think the majority of your audience may know it was a paid partnership, that you disclose anyway. I consider this to be a soft directive— they are “suggesting” it, but it is enforceable if they don’t agree that a “majority” of the audience knows about it.
Instagram, for one, also makes this incredibly easy to note. You click a button and tag the brand and a “paid partnership with [brand]” appears next to the handle on the post. So easy that to not do it would be…criminal [oh, I had to!]. Every sponsored post needs a disclosure. You agreed to a 6-part post or story on the brand? Every one of them requires a separate note on the caption. Consumers are not expected to remember which brands you have relationships with. This went particularly sideways on the Nsale with Nordstrom, where bloggers would post just one #spon story, and then fail to disclose the rest. Also, and I can’t believe this needs to be said, white text on white background with #partner is not a disclosure. If you’re promoting something as sponsored content, it needs to be in the blog post, at the top, tagged on instagram as a “paid partnership”, and noted in the caption. If you have to be sneaky to sell a product, you should find a different partner.
BONUS MYTH: INSTAGRAM’S “PAID PARTNERSHIP” TOOL IS SUFFICIENT FOR FTC DISCLOSURE
Nope. Though this is a good idea for consumer transparency (see above!), Instagram’s paid partnership tool is still considered insufficient as a full disclosure (more on this here). The FTC still requires you/the brand to put in the visible text that this is an affiliate/paid opportunity, disclose it on stories, etc.
WHAT IS A PROPER INFLUENCER DISCLOSURE?
Everyone wants to do the bare minimum when it comes to disclosing in the name of “authenticity”, but consumers are not easily fooled anymore! They expect influencers to have paid partnerships, but to just let them know. If the partner you use (or are!) is a trustworthy one, people will still trust your recommendations for brands and products, even if you were paid to do it. Note— I am not a lawyer, and this is not legal advice. But in an effort to help you get it right, here are some samples to get you started:
Affiliate links (and then list them)— note just saying “AL” here is insufficient!
#Ad in partnership with @brand.
“This video is sponsored by @brand.”
“I may receive a commission on any links you purchase from below, but opinions expressed here are my own.”
“@brand gave (or gifted) me this product to try…” — Note again that #gifted alone in a caption is not sufficient!
TLDR; Disclosure is both ethical and legally required for brands and influencers. There is a wrong way to do it, so help your fellow bloggers out and send them this post with the references below.
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