IP Tech Knowledgy

Influencers, and the businesses that pay them to be mentioned, must abide by Federal Trade Commission regulations governing endorsements.  To protect consumers, FTC guidelines have for decades, regulated when endorsers must disclose their connection with, and/or compensation by the entity they endorse or comment on.  A social media influencer who on videos posted on websites such as Tik Tok and YouTube, mentions a certain business or product in a positive light, is merely a new iteration of an endorser.  

The FTC has issued revised guidelines  and FAQs for all endorsers that include new information addressing influencers and has published specific guidance for influencers.  

The core principle influencers must follow is to clearly and conspicuously disclose a material relationship with any entity mentioned.  The notice must be “unavoidable” and presented without having to click further.  On videos, the notice must be spoken and/or in print on the screen, and repeated on longer videos.  Proper notice can sometimes be a brief notice or even a hashtag such as #sponsored or #paidendorser.  When the product is more sophisticated and/or the influencer is more prominent in the field, the disclosure may need to be more extensive.  Relying on the social media platform’s disclosures may be insufficient.  A “material relationship” requiring disclosure could be if the influencer has received compensation, or is even a friend or relative of the subject.  

The guidelines apply equally to the influencer and the entity that pays the influencer.  Any entity that hires an influencer should require the influencer to follow all FTC guidelines, if not spell out exactly how the influencer must disclose the connection.  Penalties for noncompliance are an injunction, and possibly personal liability to any consumer who is misled.  The FTC has recently issued enforcement letters to influencers and their sponsoring entities who have violated the new regulations.  

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com