There’s no reason to worry over looming questions you have about FTC disclosures when it comes to professional endorsements. We’re here to help. Since the recent update of the FTC endorsement guidelines, the FTC has also updated its endorsement guides FAQ. However, if you don’t know what to look for, updates can’t help you.
Don’t worry; the experts are here to help. Here are five key updates content creator and attorney Veronica Ramirez, Esq. thinks creators need to know about.
What Are The FTC Endorsement Guides?
ICYMI: The FTC created a set of regulations specifically for advertisers and influencers to follow when creating content online known as the “Endorsement Guides.” You can read our handy article about it right here.
These regulations outline the steps influencers and advertisers need to take to help their audience distinguish between organic and sponsored posts. As a result, creators need to include “disclosures” such as “ad,” “sponsored,” etc.
Recently, the FTC updated the endorsement guides. There was a lot of chatter about what the FTC updated within its actual regulations, which are discussed here.
Did You Know The FTC Endorsement Guides Include Examples?
One of the things I appreciate about these FTC regulations are the examples within the guides. Imagine, having plain English examples written into the law? It’s a gift.
This is incredibly useful to creators, advertisers, and marketers. One that I believe has been around for quite some time (with some minor revisions) is this one:
Clearly marketers or creators could find direct answers in the FTC’s regulations if they looked. But let’s be real, many people will click the link and close it because the document is long. That’s a good thing. It means they took the time to answer questions.
Keep in mind, this document outlines all of the updates made to the regulations as well as responses to the comments people submitted. People had A LOT to say about these updates. I don’t blame anyone for hitting snooze on the rest of this document.
Unsurprisingly, most agencies and creators are not diving that deep into the regulations to find these helpful examples. Agencies and advertisers have in-house counsel or outside firms to give them the highlights. Some even go as far as having their legal team review a creator’s content before it goes live to assess FTC compliance.
On the other hand, Creators rely almost exclusively on this helpful resource to answer their questions about the FTC’s disclosure guidelines. Some even defer to the agency or advertiser’s approval of their content as a legal green light for compliance.
But here’s the thing. People are still getting it wrong and not realizing it!
The FTC Endorsement Guidelines FAQ
Over the years, the FTC devised a supplemental resource, “FTC’s Endorsement Guides: What People Are Asking.” This resource clarifies and even directly addresses marketers’ most common questions. Like the updated FTC Guides, this document is also lengthy. However, there is a handy table of contents to make navigating it much easier.
Keep in mind that this article does not cover the entirety of the FTC’s FAQ. So please check it out here. Remember that other laws may apply as well. Be sure that you’re consulting an attorney if you have questions about your specific situation.
To spare you some time, here’s my take on some of the updated responses.
A Note Before We Begin On The FTC Endorsement Guidelines
Keep in mind the FTC’s guides and answers are not written by people who are chronically online like us. Most of what we in the industry believe is transparent or accurate is not what the FTC deems sufficient. The whole point of these regulations is to help the LEAST online consumer you can think of (for some of us that might be our grandparents who do not have a computer, social media account, or smart device in their possession).
For example, the FTC said that an adequate disclosure for a post about gifted products could be “ad.” Anyone in the industry would say that is NOT an accurate disclosure. Not only would that be inaccurate, but that disclosure also triggers a bunch of other things on social platforms that nobody signed up for.
For example, if a creator posted about a PR haul or unboxing of free products and used the term “ad” in their caption or overlay, that would trigger Instagram’s tech to flag the content as a paid partnership. That’s despite the fact it isn’t.
Not to mention the other technical backend approvals that would have to happen if a creator went this route. This answer creates more implementation issues than an actual solution. More on that in a minute.
Needless to say, these responses are not written for or by people in the trenches. So let that answer mentally prepare you for what you’re about to read next.
Five Things You Should Now About The FTC Endorsement Guidelines
1) Hosted Or Comped Dining Experiences
One of the first things I noticed while reviewing this FTC FAQ was its response regarding the disclosures #hosted or #comped. Most food and travel creators have been using this disclosure for years to convey their connection with a restaurant or hotel for attending free insider events or posting about free meals.
According to the FTC, neither disclosure is sufficiently clear. Instead, the FTC suggests that creators provide more explicit information, such as “XYZ brand flew me to Hawaii for their launch event at the EFG Resort.” In other words, if you are receiving a free stay or free meal (and nothing else) spell that out.
2) Brand Trip Content and Disclosures
That last response by the FTC also addressed brand trips, but wait…there’s more.
As you can see from that last response, there was a mention of a brand flying out a creator for a launch event. However, the thing about brand trips is that creators are not just posting about the brand products or the launch event.
Brand trips have become multi-day experiences where creators take their audience with them on the flight, the room tour, GRWM, excursions, parties, and maybe a “launch event.” So, how does the FTC address this?
Well, they don’t. But here’s my take based on the responses we’ve got.
The FTC addresses a question about a creator who is hired by a tourism board and whether the influencer needs to include a disclosure for every single trip post. The FTC basically said yes. Essentially, creators can’t assume that their audience is watching their content in the order it was published.
One interesting wrinkle they included was about the need to not disclose in “non-promotional posts” featuring a close up of a creator’s child, where there is no tags or other clues as to the location. In that instance, the FTC said that there was no need for a disclosure.
In light of these two responses, it seems to me that creators should include a disclosure for every piece of trip content. Brand trip content creates buzz around the brand, the extravagant experiences they are providing creators, and maybe hypes up a product. In my opinion, it’s hard to parse out what is “non promotional” versus promotional in this context. At the end of the day, a brand is footing the bill to make all of that content possible.
3) So Does #trippinwith[brand] Work? A Word On Wordy Hashtags.
To date, it seems like creators struggle or are confused about when to disclose on brand trips. I’m either seeing no disclosure or a wordy hashtag.
However, the FTC mentioned wordy hashtags could be unclear to consumers. Instead, the FTC suggests spelling out as a phrase with spaces (like the previous response I noted above). That being said, it’ll be interesting to see how this will play out with these updates in mind.
4) Gifted Product Disclosures
Another shocking discovery (for me, at least) was the FTC’s stance around the #gifted disclosure. I was surprised to read that the FTC said it was not sufficiently clear for consumers to hashtag your disclosure. Instead, the FTC proposed saying, “Gifted by XYZ,” when a gifted product is all that the creator received.
Keep in mind that this works as a phrase–not a wordy hashtag. Per the FTC, a wordy hashtag could be considered unclear. With this in mind, creators should reconsider how they share content around PR unboxing hauls and other free product content and the disclosures they use.
The FTC did say that “ad” would be sufficient, but we all know that disclosure makes the LEAST sense.
5) Affiliate Links And Storefront Disclosures
Creators continue to struggle with disclosures for affiliate links or storefronts. I go way back with these regulations. I studied and wrote about this exact issue in law school seven years ago. Back then, there were zero answers about what is an adequate disclosure, only that you needed to disclose.
Per the FTC, the following are not adequate disclosures:
- Affiliate link
- Paid link
- Buy now button
- Commissionable link
- A personalized discount code and nothing else
However, the FTC stated that writing “’paid link’ right next to an affiliate link should be an adequate disclosure of the nature of the link.” Yay for progress!
LEGAL DISCLAIMER:
The content discussed in this article is for educational purposes only and not for the purpose of providing legal advice. Use of and access to this article does not create an attorney-client relationship between Curator Counsel PLLC and you. The material and information presented should not be relied upon or construed as professional advice. You should not take action based upon this information without consulting legal counsel.
