FTC Updates Influencer Guidelines for First Time Since 2009

Props for the Federal Trade Commission (FTC). Slowly, over the years, it has made its activities and intentions clearer. For example, last year it promised an updated version of its Endorsement Guides would drop during the first or second quarter of 2023. Today it made good on that pledge, releasing rules aimed at protecting citizens from companies’ deceptive advertising practices.

Of particular importance for communicators and marketers, the guides cover influencer marketing.

For example, they lay out who or what is considered an influencer or endorser and how companies must disclose such information. In short, companies must make it abundantly clear a person was compensated in any manner (free products, money, trips etc) for endorsing its products/services. ?

While changing market conditions begged for updated guidance–the previous editions were issued in 2009–the thrust of the guides held steady: protect consumers from deceptive marketing practices.

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Promoting Transparency and Eliminating Deceptiveness

As Davis & Gilbert attorney Alison Fitzpatrick said, the FTC guidance can be reduced to promoting “transparency and [stopping] deceptiveness.”

For instance, on a basic level an influencer is prohibited from knowingly making false claims about a product or service. If an influencer claims “this is the best makeup I’ve ever used,” they must have used the makeup.

As you can imagine, several topics that weren’t prominent in 2009 were covered in today’s edition of the guidance. These include rules about virtual influencers and product reviews, product review sites.

For instance, is a consumer allowed to review a product without disclosing that she received it for free? And how much can companies manipulate negative consumer reviews on their site?

Also new this year is a section on influencer marketing directed at children.

Though the FTC is more transparent about its endorsement rules, some opaqueness remains. “I thought the FTC would provide the industry with more specific guidance” about advertising to children, Fitzpatrick said.

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Instead, “the FTC declined to provide further guidance as to what this new section means for child-directed influencers,” Fitzpatrick said. However, she noted the FTC wrote that “research on children’s cognitive development suggests disclosures will not work for younger children and that?marketers and endorsers should be particularly careful in their use of endorsements directed to children.”

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As such, Fitzpatrick asks, does this mean brands should avoid “influencer marketing directed to children or only children under a certain age because they will not understand the content was sponsored? These are important questions for which we were hoping for answers.”?

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In addition, the FTC today issued a Q&A guide about endorsements, updating its 2017 edition.