Silence Isn’t Golden If You’re an Influencer

Most influencers are aware of their obligations to clearly disclose when they have a “material connection“ to a brand they’re endorsing. (For those of you unfamiliar with the Federal Trade Commission (“FTC”) Endorsement Guides’ disclosure requirements, you can check out a short blog or longer article I wrote that talks about them.


But, a recent decision by the Electronic Retailing Self-Regulation Program (“ERSP”) adds a new twist. The decision interprets the FTC Act, the federal law covering truth in advertising, as saying that an influencer doesn’t have to do a shout out or say anything about a brand, to create an endorsement that must be disclosed.


The decision came from a situation where a brand provided influencers with free clothing, which the influencers wore in photos and videos they posted to their social. These influencers didn’t say anything or post any text about the clothes. Some of the influencers did mention, or tagged, the brand’s Instagram and other accounts, but that was it.


The decision noted that “an individual does not have to say something positive about a product for a social media post to be considered an endorsement covered by the FTC Act. Simply posting a picture or video of the product, or, similarly tagging a brand in the post, could convey the message that a person likes and approves of a product, and therefore, may be an endorsement”.


This decision reinforces something I’ve written about before – if you’re given something for free or at a discount by a brand, and post anything at all regarding it, you must also post a proper endorsement disclosure. An influencer doesn’t want their silence broken by getting one of those “compliance reminder” letters from the now very diligent FTC.


Just Sayin’ . . . TM