November 3, 2017
Will that serum make my skin glow, too? Is [influencer] being paid to post that? Is that a genuine customer review? As brands increasingly turn to bloggers, influencers and social media reviewers to market their products and leverage an influencer’s a cult-like fan following, the line between unbiased third-party opinions and paid-for endorsements can sometimes be as clear as mud.
This September, the FTC updated its Endorsement Guide FAQs (“updated FAQs”) in response to some of the most frequently asked questions from advertisers, ad agencies, bloggers, and social media influencers. Reflecting the fundamental “truth in advertising” principles embedded in consumer protection laws, the updated FAQs are intended to provide greater practical guidance on how to effectively communicate material connections and relationships between reviewers and the brands they endorse.
Blogging and vlogging about a product are not the only forms of product endorsements. The updated FAQs clarify that more tacit practices, such as simply tagging brands in a post or pinning/posting a picture on social media, can also constitute forms of product endorsements if a relationship exists with the company marketing the product. It is also not necessary to have purchased or used a product; aspirational posts may also be endorsements if the blogger is expressing his/her views about the product and was paid or compensated for the post. The bottom line: If a material connection exists– i.e. any connection that might affect the credibility and weight that consumers might lend to an endorsement– then it must be clearly and conspicuous disclosed.
In order for a disclosure to be adequate, it must clearly and conspicuously communicate the relevant connection. Advertisers are encouraged to use plain and unambiguous language and ensure that the disclosure easily stands out. The FTC recommends that disclosures be:
- Close to the claims to which they relate;
- In a font that is easy to read;
- In a shade that stands out against the background;
- For video ads, on the screen long enough to be noticed, read, and understood;
- For audio disclosures, read at a pace that is easy for consumers to follow and in words consumers will understand; and
- Positioned so as not to be hidden or buried in footnotes or blocks of text that are unlikely to be read, or in hyperlinks. The FTC’s guidance document entitled “.com Disclosures: How to Make Effective Disclosures in Digital Advertising,” provides useful guidance on how to make effective disclosures.
The updates FAQs also provide practical advice on how to position disclosures on various social media platforms, like YouTube, Instagram, Twitter Snapchat and Instagram Stories. Moreover, the FTC underscores the importance for advertisers not to rely on a platform’s built-in disclosure features, but rather evaluate if the tool allows for a clear and conspicuous disclosure of the material connection. Placement, viewer experience, font and wording are all factors that should be considered when evaluating a platform’s disclosure tools. While the FTC isn’t mandating the specific wording of disclosures, it does discourage the use of ambiguous hashtags such as “#client”, “#advisor” and “#ambassador”. The Endorsement Guides and updated FAQs provide real-world and practical examples covering various endorsement scenarios and are indispensable tools for advertisers, influencers and social media reviewers.
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