Double Standard? Influencers Debate Disclosures

Advertising Law

At a recent conference, social media influencers took aim at what they perceive to be a double standard in enforcement of the Federal Trade Commission’s (FTC) Endorsement Guides.

In recent months, the agency has cracked down on the social media ecosystem with respect to the requirement that marketers make a clear and conspicuous disclosure of any “material connection” between an endorser and the advertiser of a product.

But at the same time, the FTC has turned a blind eye toward other types of promotions that lack any type of disclosure, influencers argued at a meetup hosted by Tubefilter and SAG-AFTRA. Celebrities and athletes who make sponsored posts appear to be getting a free pass, the influencers told Thomas Dahdouh, director of the FTC’s Western Division and a member of the panel. And don’t even get them started on television shows, where product placement abounds but disclosures are nowhere to be seen.

“We’re all familiar that product placement is not disclosed in a music video or in the middle of ‘American Idol,’” said panelist Ruben Ochoa, according to a report from thewrap.com. “However, product placement in a [social media influencer’s] video must be disclosed if the brand has a material connection to the influencer. It’s a big disconnect. [Undisclosed product placement] is allowed in some mediums, but not this medium.”

This disparity has a huge impact on influencers, another panelist said. “A post goes DOA when you put an ‘#ad,’” Drew Baldwin said. “You may as well put up a commercial.”

In response to suggestions that consumers understand that a material connection exists between professional athletes endorsing sneakers or the Kardashians touting any product (lessening the need for a disclosure), attendees pushed back.

“Internet viewers are not dummies,” Patty Glen, better known as “Granny Potty Mouth” on YouTube, told the panel. “The watch time on [our stuff] is no different than [it is for] a 40-year-old guy sitting there [watching TV] with a clicker in his hand. It’s no different! We’re just fresh meat for you to come chasing after!”

Dahdouh pointed out that the FTC has enforced the Endorsement Guides against major players, citing actions against Warner Bros. and Sony. “I don’t think these are different rules,” he said. “It’s not to say that social media influencers are not incredible celebrities, but there are nuances. What you wouldn’t want is the government to respond in a straightjacket [sic] way to every different nuance and fact pattern, right? Is that really what you want? Do you want it straitjacketed?”

Why it matters: Given the continued growth of social media marketing, the debate over enforcement of the FTC’s Endorsement Guides isn’t going away anytime soon.