May 3, 2017

Before you skip this blog post and think it has little to do with you, I want to assure you that it most likely does impact you in some way. The Federal Trade Commission recently updated their guidance on sponsored content for brands and influencers. While their policy is more directed towards Instagram and celebrity influencers, it actually applies across the board to all social media and can impact a business of any size or influence.

I am not a lawyer and am not attempting to provide you with actual legal advice, but you know how much I love to keep you up to date on legal implications and ways to protect yourself and your business on social media.

So, if you do anything with affiliate links or promotions, share any sort of sponsored content where you get compensated, or if you work with influencers for your brand, this information will impact you and you want to understand how.

And before I get into all the technical stuff, let me assure you that this is important. Just because the wheels of the government may be slow to turn and they are often lagging in their ability to keep up with social media changes, this does not mean you or anyone else is exempt. Just because others are "getting away with it" does not mean you should assume you will too. If you want to protect your brand or the businesses you work with, you should be aware of the laws and how they impact you.

So, what do you need to know?

According to the FTC, "an advertisement or promotional message shouldn’t suggest or imply to consumers that it’s anything other than an ad."

If you, as a business or brand, post content that endorses another product, and you are compensated for that content, you are required to provide "clear and conspicuous disclosures" that it is branded content and that you are being compensated.

This means that if you get a portion of proceeds for everyone that signs up using your affiliate link, you need to tell people that it is an affiliate link. You'll often notice bloggers put [affiliate link] before or after a link to disclose this. This makes it obvious - or conspicuous.

If you share something to social media via photo or video that demonstrates a product you are endorsing, and being compensated to promote, you are required to include information in the post details that it is a "sponsored post" or "ad". Again, this makes it obvious to your audience.

In all reality, I could end this blog post here. Do this, you'll be fine!

The problem with rules, though, is that people try to skirt around them. And that's what's happened lately. Celebrities and brands started using #sp (for sponsored post) on their posts claiming that was sufficient. But, the FTC came back and said not so much. The average person would not know what #sp means so that statement is not conspicuous and therefore it violates the policy.

Then you also had people hiding the "conspicuous statements" in a batch of hashtags, or within a blurb of text and disclaimers, or at the bottom of a post caption. This would make it "hidden" and therefore, again, not conspicuous, and in violation of the policy.

So, the FTC has had to come out with enhanced guidelines and actually sent detailed letters to a number of influencers in order to clarify the expectations that align with this policy.

While the letter was targeted towards Instagram users, likely because this is the platform of choice for most of these people, and easily monitored, the information should be considered for all social media platforms. In this letter, the FTC actually tells marketers and endorsers to include the conspicuous disclosure prior to the "...more" on Instagram captions, and to avoid burying the disclosure in a long list of hashtags at the bottom of the caption or in another comment.

Here's why this is so important: the FTC has realized that brands will get sneaky to avoid disclosing branded content and they are doing what they can to mitigate this to protect the public consumer.

If they are noticing this on Instagram, they are going to pay attention to other platforms as well. They are paying attention to how you disclose sponsored content and where you put those messages.

It is important that you consider this whenever you promote an affiliate link, a compensated post, a paid endorsement, or other type of sponsored content. You want to be clear about your intent and be "transparent" with your audience. You can read more about the FTC guidelines here.

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  1. Thank your for this reinforcement and the update Jenn! I have definitely seen how this has become an issues within the celebrity influencer circuit but, we are not immune and ignorance is not an excuse for violating laws, as we know. 🙂

    I can definitely see an impact on copywriters that have been focused on native advertising on social media. I also wonder if FTC will require text labels on videos noting they are a sponsor or affiliate.

    Anyway, at the end of the day, better safe than sorry. Be obvious! Thanks again Jenn for staying on top of this stuff and sharing it!

    1. To be honest, yes, if it’s not already required, I can pretty much assure you it will be required in the future to include disclaimers on the videos – I’m going to have to look into this specifically 😉

  2. Hi Jenn,
    Does this include Social Media Managers that share client content on Facebook groups, under there own name?

    1. Michelle, in general, I’m going to say it doesn’t… here’s why. If your client is paying you to do a service for them (unrelated to promoting their product/service), then they are paying you for that separately. Any sharing or promoting you do, is of your own volition and therefore you’re not being compensated to do it. Now, if they ask you to do it because of your reach or influence and that is part of your contract for which you’re being paid, then yes, you would have to disclose it.
      And, even to be fair to the other members of your FB group, I would still disclose it, even though, by my interpretation of this policy (and again, I’m not a lawyer), it wouldn’t be required.
      How’s that for a “but” answer? 😉

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