On the heels of the FTC’s updates to its Guides for Endorsements and Testimonials, the FTC issued a press release describing warning letters sent to two trade associations and 12 online health influencers.
The letters warned the recipients about the lack of adequate disclosures in influencers’ social media posts that promoted the safety of artificial sweeteners and consumption of sugar. The FTC emphasized that paid endorsements must clearly and conspicuously disclose any unexpected material connections so consumers can make informed decisions. Among other issues the FTC raised, the letters highlighted the following:
- Posted endorsements with no disclosures of any kind;
- Video posts lacking conspicuous disclosures, with the FTC emphasizing that if endorsements are made through both visual and audible means, the disclosure must be in the video and audible portions of the post;
- Posts with insufficiently conspicuous disclosures, such as placing “#sponsored” and “#ad” too far down in the text descriptions of posts; and
- The FTC’s position that posts that rely solely on a platform’s “Paid partnership” disclosure tool may not meet the clear and conspicuous standard.
Notably, the FTC also suggested that some disclosures were inadequate because the dieticians did not identify the precise sponsor of the posts. The letters suggested that including common disclosures like “Paid partnership,” “#sponsored,” and “#ad” may not suffice where the post does not clearly and conspicuously disclose who sponsored the post.
The press release emphasized the need for transparency in such endorsements, and noted that companies that hire influencers must ensure those influencers make adequate disclosures. Each letter also warned recipients of the possibility of civil penalties of up to $50,120 per violation for future failures to make adequate disclosures.
Influencers making endorsements should review their own practices to ensure that disclosures meet the FTC’s guidelines. Likewise, companies hiring influencers should review their own practices to ensure they are adequately monitoring compliance by the influencers they retain.
