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FTC Guidelines for Influencers… Essential Tips From a Lawyer

Blogging Tips

FTC Guidelines for Influencers... So You Don't Get in Trouble with the Feds

Last Updated June 2021 by Crystallace

Social media influencing has become the next big marketing wave and I think it is here to stay. I’m happy about it because it’s nice to see every day people get paid for talking about brands and products that they already use.

Sidebar: Did ya’ll see the Fyre documentary on Netlfix?

One of those most interesting things about the imaginary Fyre Festival is that for the first time, a major lawsuit (100M’s) arose against the founders AND the influencers. Yes, influencers can be sued. In this case, the claim was for negligent misrepresentation, fraud, and  breach of contract. 

Imagine one day you’re posting weight loss tea and then boom you’re getting sued because you didn’t caption right. #fail

Fortunately, the FTC guidelines for influencers are in place to help you protect yourself. So let’s briefly go over best practices, so that you know what to do because the Feds are always watching.

FTC Guidelines for Influencers

FTC Guidelines for Influencers... Essential Tips From a Lawyer

How to Properly Disclose a Brand Partnership on Social Media

The Rule: Any time there is a material connection between the endorser (influencer) and advertiser (or brand), that connection must be disclosed.

A  material connection can be defined as having a business or family relationship with the business, receiving a gift, or being paid.

For the purposes of this article, let’s say that you are an influencer and your friend has started a clothing brand [@randomclothingline]. Your friend asks you to wear one of his hoodies and post it on Instagram so that he can gain some traction. You agree. In exchange for this he gives you a hoodie.

FTC Guidelines for Influencers... Essential Tips From a Lawyer

We now have a material connection. So what’s next?

You post a picture wearing the hoodie on Instagram. You want to add the caption “Thanks @randomclothingline for my hoodie.” Or, you tag the business in your photo and put the caption “Thanks for my hoodie.” 

No bueno. This simply isn’t enough of disclosure to satisfy the guidelines. The FTC guidelines for influencers are clear about the required usage of disclaimer language when posting partnership, sponsorships and endorsements. Hashtags such as #ad #advertisement #sponsored #sponsoredpost suffice, as long as they are included, in the FTC’s words, “clearly and conspicuously.”

How do we know if our disclosure is “clear and conspicuous?” While this does not mean that they have to be at the beginning of your caption (which is a common misconception), it does mean that your disclosure needs to be easily seen. Placing the disclosure at the beginning is probably so common because it’s relatively safe, since you can be sure that your readers will see it before reading your message.

However, including the disclosure within the first three lines of the caption is typically sufficient, as well. Hiding the disclosure in the comments or way down at the bottom of your caption isn’t going to work. If the reader has to click “more” to see the hashtag, you’re not doing it right.

If you don’t want to use a hashtag you have to be clear that the post is sponsored in your language. The FTC has been clear that built-in Instagram tools that denote the post “paid” or “sponsored” are not enough.

“Thank you @randomclothing for gifting me this hoodie.” It is not enough just to say “Thanks @randomclothing.”

So let’s say you only like to post dope pics and use the caption “Caption this,” but you still want to look out for your friend so you tag @randomclothingline in the photo. There is still a “material connection” and according to the FTC guidelines for influencers that post is an endorsement. You have to disclose this partnership in the caption.

The same goes for Instagram stories, hashtags must be used and be conspicuous (not hidden) and on the same story as the sponsored post, not the next one, and not the next day.

How to Follow FTC Guidelines for Influencers Across the Internet

FTC Guidelines for Influencers... Essential Tips From a Lawyer

The FTC isn’t solely concerned with how influencers recommend products and brands on Instagram. Influencers need to be diligent about properly disclosing their partnerships on every single platform where they’re creating content. That includes blogs, Facebook, Twitter, Pinterest, TikTok, LinkedIn, and anywhere else online. If the material connection is there, it must be disclosed, no matter what platform you’re using. 

It’s also important to remember that disclosures aren’t the only area influencers need to be aware of when it comes to following the FTC guidelines for influencers on social media. For example, the FTC has warned that buying engagement or followers can be seen as a deceptive practice and should be avoided.

Additionally, you’ll want to keep a few other aspects of the partnership in mind:

  • The disclosure needs to be in the same language as the rest of the content.
  • You can’t make health claims about a product without scientific proof of those claims.
  • Using jargon or terms that the average user won’t understand is not sufficient. For example, stating that your content is a “collab” between you and a brand is not enough of a disclosure. 
  • Endorsements must reflect your honest opinion of a product. If you hated a product, you can’t say you loved it and recommend it just for the sake of the campaign. 
  • According to the FTC guidelines for influencers, “tags, likes, pins, and similar ways of showing you like a brand or product are endorsements.”
For more Sponsored Post opportunities straight to your inbox, sign up for Blogging Money Update!

How to Disclose Affiliate Relationships

FTC Guidelines for Influencers... Essential Tips From a Lawyer

Affiliate relationships are common in the influencer marketing industry and are established when an influencer shares a link or “coupon code” to receive a commission on sales generated from their audience. Clearly, a material connection is present so the relationship must be disclosed. According to the FTC guidelines for influencers, affiliate disclosures should be visible at the same time as the link. 

I wrote an entire blog post about appropriate affiliate link disclosure. It goes more in detail about it, you should check it out.

Best practice is to ensure that your blog has the 3 pages that every blog is legally required to have. Most brands won’t even work with you unless you have these legal pages on your website. That’s because well written legal pages properly disclose partnerships and affiliate relationships.

If you are an influencer and you don’t have a blog you are missing out on big bucks and protecting your brand. Check out this blog post I wrote on Why Every Influencer Needs a Blog.

FTC Guidelines for Influencers... Essential Tips From a Lawyer

FTC Guidelines for Influencers: Disclosing Brand Partnerships in Video

With the popularity of video content, it stands to reason that there are more product placements and influencer partnerships on platforms like YouTube, Instagram Stories, and TikTok, among others. The same guidelines apply, with a few additional considerations:

  • Disclosures need to be included in the video content, not just in the description or caption area. This is an important part of making the disclosure clear and conspicuous.
  • In a live video event, the disclosure should be repeated periodically throughout the livestream. 
  • The disclosure needs to be shared in a way that ensures viewers will have enough time to see it or hear it. 

What if a Brand Asks Me to Ignore the FTC Guidelines for Influencers?

Check out this course dedicated on maximizing sponsored post opportunities!

FTC Guidelines for Influencers... Essential Tips From a Lawyer

From time to time, influencers might be asked to post sponsored content without a disclosure, to make false claims about a product, or otherwise fudge the FTC guidelines. However, doing so is not worth the risks. The legal risk aside, there are a few other downsides to consider:

  • You’re starting a brand relationship off on an unprofessional note. 
  • You can damage the trust your audience has for you.
  • You may attract further sketchy requests from other unprofessional brands.

If a brand asks you to post something sketchy, you have a few options. You could follow the request and assume the risks involved. (Not recommended.) You could decide not to work with them at all. You could also respond by educating the client about guidelines and why it’s so important to follow them closely. 

FTC Guidelines for Influencers... Essential Tips From a Lawyer

For example, you could say something along the lines of,

“Hi Brand Manager! In order to comply with FTC guidelines and protect our brands during this campaign, I’ll have to include a disclosure with my post. By following the guidelines, we’ll see a lot more success in the long run.”

Always be sure to use a Sponsored Post Agreement when working with brands. You want to be sure to always have important contract details in writing. Having all the details agreed upon in writing beforehand ensures that there are no miscommunications about what’s expected. Everyone can be on the same page, literally.

You’ve probably got the picture now.

Check out these other blog posts: 

25 Tax Deductions for Bloggers and YouTubers: https://heycrystallace.com/25-tax-deductions-for-bloggers-and-youtubers

Why I Started a Blog and You Should Too: https://heycrystallace.com/why-i-started-blog-and-you-should-too

Why You Need These 3 Legal Pages for Your Blog: https://heycrystallace.com/why-you-need-these-3-legal-pages-for-your-blog

FTC Guidelines for Influencers... Essential Tips From a Lawyer

from the lawyer next door,
Crystallace Fenn

FTC: I participate in an affiliate marketing program. If you choose to make a purchase as a result of clicking a link, I may receive a small commission of the sale. This helps me run my blog and I don’t talk about things I don’t actually use.

HeyCrystallace.Com is a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a way for websites to earn advertising revenues by advertising and linking to [Amazon.com or .ca, .co.uk, etc.]

Legal Disclaimer: Although I am a lawyer by profession, I am not YOUR lawyer. All content and information on this website is for informational and educational purposes only, does not constitute legal advice and does not establish any kind of attorney-client relationship by your use of this website.

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