Last week, Bloomberg ran an article suggesting that the FTC is about to “crack down on paid celebrity posts” that aren’t labeled as ads. If you read this blog, you already know this is a big priority for the FTC. In fact, the agency has launched investigations against a number companies who used influencers to promote their brands without requiring the influencers to disclose their relationship to the companies. That’s not new. But what may be new are the suggestions from the FTC that some of the methods influencers commonly use to disclose those relationships may not be adequate.
There is no one-size-fits-all strategy for making the necessary disclosures. In a medium where space isn’t an issue, making the disclosure in a full sentence is usually ideal. And the sentence doesn’t have to include “legal” language – something as simple as “I’m working with” the company will usually do. But where space is limited, such on as Twitter, influencers will often turn to hashtags. The FTC has previously suggested that hashtags such as #ad or #sponsored can be used to disclose that something is an ad or sponsored content. But they’ve frowned on other abbreviations, such as #spon, worrying that many consumers won’t understand them.
According to the article, simply using the right hashtag in a tweet may not be enough, though. Michael Ostheimer from the FTC’s Ad Practices Division said: “If you have seven other hashtags at the end of a tweet and it’s mixed up with all these other things, it’s easy for consumers to skip over that. The real test is, did consumers read it and comprehend it?” Accordingly, he suggests that the disclosures at the beginning of a tweet would better satisfy the FTC’s “clear and conspicuous” standard. Apparently, the FTC is worried that a typical consumer’s attention span will run out before the end of 140 characters.
Although the suggestion that legal disclosures should appear at the beginning of a tweet is troubling, it’s too early to read too much into this. Ostheimer may be expressing a preference for a best practice, but that doesn’t necessarily mean that a company will get in trouble for having a disclosure at the end of a sponsored tweet. Again, the goal is to ensure that consumers are likely to understand that something is sponsored, and there’s certainly more than one way to for an advertiser to achieve that goal.
What is clear is that this continues to be a priority for the FTC. Ostheimer states that the FTC will continue to go after advertisers whose influencers fail to made adequate disclosures. Although the FTC has yet to charge an influencer with deceptive advertising, it hasn’t ruled that out. If your company uses influencers, now may be a good time to take a look at your practices. There’s still a lot of gray in this area, but there are easy things you can do to avoid becoming an easy target.