In September, we noted that four groups – Public Citizen, Commercial Alert, the Campaign for a Commercial Free Childhood, and the Center for Digital Democracy – had sent a joint letter to FTC encouraging the agency to investigate and bring enforcement actions related to the use of influencers on Instagram. The letter included examples of over 100 allegedly problematic Instagram posts. This week, the same groups sent another letter to the FTC with 50 new examples, and once again urged the Commission to take action to stop this “dangerous trend.”
Although some of the examples provided in the letter could – if the allegations are true – violate the FTC’s Endorsement Guides, others are arguably fine. The problem is that groups misstate some key provisions in the Guides and exaggerate advertisers’ responsibilities. For example, the groups suggest that all paid endorsements must be labelled as ads. Although a label is often necessary, the FTC has acknowledged that a label may not be required if something is obviously an ad. Some of the examples in the letter are obviously ads.
The groups also suggest that the only appropriate labels are #advertisement or #ad, and they argue that a #GotItFree hashtag is not sufficient. However, the FTC has stated that there is “no special wording” for the disclosures and has discussed other labels, in addition to the ones the groups suggest are required. Moreover, the Commission has opined that a simple disclosure explaining that a person received a free product to try “will usually be effective.” Some of the examples in the letter arguably comply with this requirement, as well.
Undoubtedly, many influencer campaigns don’t comply with the law. But as anyone who has worked extensively with influencers knows, there is a lot of gray in this area, and there often aren’t one-size-fits-all answers. A letter that suggests otherwise and lumps compliant campaigns together with non-complaint ones is not helpful. Although it’s too early to see if the FTC will take any action in response to these letters, we can hope that the Commission will see that the letters mischaracterize the Guides and evaluate campaigns with a more reasonable eye.
Regardless of what happens, this letter serves as another reminder of the potential risks associated with influencer campaigns. For more details, see this Law360 article.