A recent New York Times article describes how people with large followings on social media platforms like the Vine video service and Instagram are cashing in on their popularity by posting advertising. Advertisers are attracted to popular social media personalities because they can reach social media users where they spend a significant amount of their time. The article notes that there are guidelines for disclosing that social media posts are sponsored by an advertiser, and describes ways advertisers are doing so. This is a good reminder for those considering such social media marketing campaigns to freshen up on what those guidelines are to avoid getting tangled up with the Federal Trade Commission (FTC). The FTC has made clear that consumer protection principles apply in all forms of media, including social media. Both advertisers and the social media stars they partner with can be liable if they don’t follow them.
If the connection between an advertiser and endorser is not obvious, the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising require that consumers be told about the connection. Because it may not be obvious to consumers that an ad disseminated through consumer-generated social media -- such as a consumer-made video on Vine -- is in fact an ad, that fact may need to be disclosed. To avoid deception, disclosures about representative results from using a product or service or important terms of the offer may also be necessary. In addition, the disclosures will often need to be in the ad itself and not on a click-through webpage. The FTC’s .com Disclosures guidelines provide do’s and don’ts when making such disclosures in ads where space is at a premium, as it is in social media posts. The FTC has repeatedly cautioned that if a disclosure is necessary to avoid deception in an ad but it doesn’t fit in the medium being used, then the ad should be modified or not used. Social media can be a powerful tool for reaching potential customers, so it is worth understanding the FTC’s expectations. Failing to follow the FTC’s guidelines could result in an investigation and ultimately an injunction and perhaps consumer redress.