The Federal Trade Commission is trying yet another approach to convey the message that the relationship between a social media “influencer” and the brand he or she is endorsing must be disclosed. This new guidance from FTC staff takes the form of a brochure (with accompanying video) aimed directly at influencers. It bluntly states that influencers “must comply with the law” when working with brands to recommend or endorse products and provides “tips on when and how to make good disclosures.”
The brochure is a distillation of the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Endorsement Guides”), as well as subsequent FAQs, guidance, and related materials. Arising out of the prohibition under Section 5 of the FTC Act on unfair and deceptive acts or practices, the Endorsement Guides require advertisers and endorsers (i.e., influencers) to, among other things, clearly and conspicuously disclose when the advertiser has provided an endorser with any type of compensation in exchange for an endorsement. This type of arrangement is what the Endorsement Guides describe as a “material connection,” meaning “a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience).” The new brochure delivers this message as follows: “Telling your followers about these kinds of relationships [i.e., material connections] is important because it helps keep your recommendations honest and truthful, and it allows people to weigh the value of your endorsements.”
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