Tessquire

Some Quick Tips on FTC Disclosure Compliance as Told by the FTC Endorsement Guides

Last Monday, we discussed a series of warnings issued by the Federal Trade Commission (“FTC”) to several influencers for allegedly failing to sufficiently disclose sponsorships with the American Beverage Association and the Canadian Sugar Institute on the social media platforms Instagram and Tiktok. 

With emerging trends on social media, it is more important than ever for brands and influencers alike to be familiar with laws against deceptive advertisements. This is especially true because the perspective is on the consumer–not the poster of the allegedly deceptive ad. As new trends emerge, new levels of disclosures will be required. 

One app that has managed to remain competitive throughout the past decade of social media trends is Instagram. When most of us millennials downloaded the app, all we could do was post a singular photograph. Fast-forward to over a decade later, and now we have photo carousels, stories, live streams, and videos. Each type of post requires its own level of disclosures. Read on for some best practices to keep in mind when posting an endorsement in a live stream, story, or video. 

But first and foremost, when are endorsement disclosures required? 

Disclosures are required when you endorse a product on social media and you have a relationship, i.e. material connection, with the brand. A “material connection” with a brand includes a personal, family, employment, or a financial relationship (such being paid and/or being given free or discounted products or services).

Second, how are you supposed to disclose; and what are some best practices to keep in mind?

The FTC warns that disclosures are likely to be missed by consumers if they appear only at the end of posts or videos, or in a caption that requires a person to click “more.”  Overall, the FTC’s guidance says to place the disclosure in an obvious and hard to miss way. This will vary depending on the medium, but essentially the disclosure should be contained within the endorsement itself. 

If the endorsement is in a picture on a platform like stories, FTC guidance says to superimpose the disclosure over the picture and make sure viewers have enough time to both 1) notice and 2) read it.

If the endorsement is made in a video, FTC guidance says the disclosure should be in the video by audio and visual means–not just in the caption or description of the video. This is because viewers are more likely to notice disclosures made in both audio and visual means. For example, some viewers may watch the video without sound and others may not notice superimposed words. 

If making an endorsement in a live stream, FTC guidance says the disclosure should be repeated periodically to ensure that viewers who only see part of the stream will hear the disclosure. 

Additionally, don’t assume a social media app’s disclosure tools are sufficient. Make a point to educate yourself on whether additional disclosures are required. 

In addition to adequately disclosing the endorsement, the FTC requires the endorsement to be truthful in order to properly comply with disclosure guidelines. This means not making any claims that are untrue–such as claiming that data shows a product makes you healthier when in fact there is no data to support such a claim. 

The FTC has tons of resources available online for anyone looking to get familiar with proper disclosure requirements. For more information on the above, see the FTC’s staff publication Endorsement Guide titled Disclosures 101 for Social Media Influencers.