WASHINGTON, D.C. – Last summer, the Federal Trade Commission (FTC) updated its advertising guidelines for combatting “deceptive reviews and endorsements,” incorporating public comments received since the previous revision to their “Endorsement Guides” in May, 2022.

More recently, the FTC sent warning letters to two trade associations and a dozen registered dieticians and other health influencers “warning them about the lack of adequate disclosures in their Instagram and TikTok posts promoting the safety of the artificial sweetener aspartame or the consumption of sugar-containing products,” as the FTC put it in announcing the warning letters.

“It’s irresponsible for any trade group to hire influencers to tout its members’ products and fail to ensure that the influencers come clean about that relationship,” said Samuel Levine, Director of the FTC’s Bureau of Consumer Protection.

While the FTC warning trade associations and influencers over failing to disclose endorsements in the context of promoting sweeteners might seem far afield of anything an adult influencer might need to worry about, the warning letters highlight potential concerns for all influencers who are compensated for their endorsements.

“Both advertisers and influencers have an obligation to disclose material connections,” the FTC explained in a release after sending warning letters to the American Beverage Association (AmeriBev), The Canadian Sugar Institute and the dieticians and influencers associated with them. “The legal responsibility for disclosing material connections is a two-lane highway.”

While the FTC asserted that advertisers “should explain the rules of the road to influencers they bring on to promote their products and monitor what influencers are doing on their behalf,” the Commission also emphasized that influencers have an independent responsibility to understand and follow the rules, stating that influencers “have an obligation to disclose in their posts who they’re working for.”

When disclosing an endorsement, “how and where you disclose a material connection matters” as well, the FTC explained.

“It’s not enough to disclose a material connection any old place in social media,” the Commission said in their statement. “As the warning letters state, ‘Consumers should be able to notice the disclosure easily, and not have to look for it.’ What’s more, ‘Any required disclosure should be presented without having to click.’”

That last line above is crucial. Simply providing a disclosure somewhere isn’t sufficient; the disclosure must be “conspicuous.”

“In some instances, influencers ‘disclosed’ their connection with obscure hashtags, at the end of longer descriptions that Instagram truncates, or in poorly contrasting type – methods the FTC staff says are insufficiently conspicuous,” the FTC noted.

The guidelines also hold that disclosures in videos “may need to be audible, visual, or both.”

“When endorsements are made audibly in a video, the video should include a prominent audible disclosure,” the FTC wrote. “When endorsements are made visually, there should be a prominent visual disclosure in the video as well. Videos that have both audible and visual endorsements should have prominent audible and visual disclosures.”

FTC also admonished it’s “unwise to rely solely on platforms’ disclosure tools.” Some of the influencers who received the FTC warning letters used Instagram’s ‘Paid partnership’ tool to disclose they were being compensated.

“The Commission has previously expressed concerns about the conspicuousness of such built-in disclosure tools alone,” the FTC wrote in its letters. In the statement which followed, the FTC said this “doesn’t mean influencers shouldn’t use those tools, but they’re likely to be more effective when used in conjunction with other, clearer forms of disclosure.”

The Commission said influencers also should “clearly identify the sponsor of their posts.”

“Standing alone, the ‘Paid partnership’ disclosure conceals a highly material fact: Who’s the partner doing the paying?” the FTC wrote.

In its letters to some of the influencers, FTC noted that without knowing who the sponsor of the post is, “viewers might not be able to adequately evaluate the weight and credibility to give your endorsement.”

“Even the language of the ‘Paid partnership with ameribev’ disclosure in your June 29 Instagram post may be inadequate, as many viewers may not understand what ‘ameribev’ is,” FTC wrote to one of the influencers in question.

Influencers should also be aware that “future violations could prove costly.”

“Included with the warning letters is the FTC’s Notice of Penalty Offenses Concerning Deceptive or Unfair Conduct Around Endorsements and Testimonials,” the FTC noted in the statement. “As staff explained, ‘[R]eceipt of the enclosed notice puts you on notice that engaging in conduct described therein could subject you to civil penalties of up to $50,120 per violation.’”

While adult influencers have a very different set of endorsements to consider (unless the international sugar and aspartame lobbies are actively seeking adult influencers as I type this), the rules laid out by the FTC apply every bit as much to adult product endorsements as they do to the stuff we put in our coffee. If you’re being paid to endorse products, services or companies, be sure to familiarize yourself with the FTC’s guidelines – and more importantly, be sure to follow them.