This past April, the Federal Trade Commission issued a press release that announced that they had sent 90 letters to influencers and marketers notifying them about their failure to properly disclose endorsements on social media. This was the first time FTC staff contacted media influencers directly about following their Endorsement Guide. For those unfamiliar with the FTC, their mission is to ‘protect consumers by preventing anti-competitive, deceptive, and unfair business practices, enhancing informed consumer choice and public understanding of the competitive process, and accomplishing this without unduly burdening legitimate business activity.’

This sent somewhat of a shock wave throughout the industry and prompted those already familiar with the FTC regulations to take a second look. No changes or updates were made to the FTC’s guidelines nor were any financial penalties handed out to those who failed to abide (as of April 2017). So, what was the point of the FTC’s efforts? Was it to make a statement or act as a cautionary slap on the wrist? Is there more to come? Whatever the reason, it’s clear that the FTC will be more closely monitoring the content created and posted by influences and celebrities on social media.

At starpower, we always counsel our Brand client’s on proper disclosure techniques and ensure that their influencers are disclosing their relationship to our clients when creating and posting branded content. Here are a few considerations to keep in mind when partnering with influencers and celebrities on social media:

Types of Relationships that Need Disclosure
According to the FTC, any financial or material connection between a Brand and Influencer needs clear and obvious disclosure, including:

• Monetary payment or experiential incentive
• Any business or family relationship (“I have a pre-existing relationship with Brand…”)
• An Influencer who is given free products or experiences to mention a product, service, or brand

Considerations for Proper Disclosure

• All disclosure needs to appear “above the fold” as defined below
• If using a hashtag, in must be obviously separate from any other non-branded hashtags
• Whether a disclosure is sufficient is a fact-based question, but these have generally been found

To Include in Captions:

• #AD, #SPONSORED, or #__PARTNER
• If verbal, language must be clear and unambiguous. An example: “This video is sponsored by [Brand]”
• Simply saying “thanks [Brand], #paid or #partner does not suffice as proper disclosure

Disclosure Must Occur…

• Instagram: Before the “more” button in the copy of the post
• No other brands or people are permitted to be tagged in the image or mentioned in the post (ex. photographers, friends and/or retailers cannot be associated with the campaign
• Twitter: Within the same Tweet
• Common techniques like threading Tweets or Retweeting are not permitted
• YouTube (or other video content):
• Both verbally and visually before the endorsement, claim or product is featured in the video
• Facebook: Only when both the Brand and Influencer have a verified account
• Facebook’s Brand Partnerships need to be contacted ahead of the launch for proper in-platform disclosure and monitoring
• Note: When “sharing” content from one platform to another, each piece of syndicated content needs to be altered to comply with the platform in which it individually lives on

SAG Payments Must Be Issued If

• The Influencer is a member of SAG or the advertiser (Brand) is a signatory of SAG AND
• The influencer is appearing in video content on any social media platform regardless of length, production quality, etc.

OR

• The Influencer is posting any type of content that includes a CTA or drives to a live video or future video (ex: “come back next week for my video partnership with [Brand]”)

It’s a lot of information, and it can be complicated! If you have any questions, reach out!

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