Endorsement Deals

Important Updated FTC Disclosure Requirements For Influencers And Athletes Doing NIL

On June 29, 2023, the Federal Trade Commission (FTC) published updated advertising guides to combat deceptive reviews and endorsements. Among those guides is one specifically related to Endorsements, Influencers, and Reviews. If you use endorsements in your marketing, which all influencers and many athletes do when it comes to engaging in Name, Image, and Likeness (NIL) opportunities, then it is important to understand these FTC guidelines and strictly follow them to avoid punitive action taken against you as well as the brands that associate with you.

If you have any questions about the FTC’s updated guidance or seek assistance with the drafting, revising, or negotiation of any endorsement contracts, then feel free to contact us about your particular matter. We keep all communications confidential, pride ourselves on quick and active responses, and do not charge for initial consultations.

Here are the important updates from the FTC.

The guides concerning the use of endorsements and testimonials in advertising are extensive. As such, I did my best to highlight those provisions that should be most relevant to influencers and athletes who should be cognizant of the rules so as to best ensure they avoid becoming the targets of FTC action. The following sections are copied and pasted from the FTC’s website.

If I upload a video to TikTok and that video requires a disclosure, can I put the disclosure in the text description of the video?

The text description on TikTok is in small print, it doesn’t stand out, and it often doesn’t contrast against the background of the video. Also, TikTok videos often have many competing elements. A disclosure in the text description is thus very unlikely to be clear and conspicuous. When content creators want viewers to read something, they superimpose much larger text over their videos.

I’m a skin care influencer and I have an endorsement deal with a brand. If I post negative comments about a competing brand, do I have to disclose my endorsement deal?

Yes. If you criticize a competitor of a brand that you are paid to endorse, you should disclose your paid relationship. It would likely affect the weight and credibility that your audience gives to your negative comments.

In my social media posts, I mention or show products I use. If I say nothing positive about a product, is the post an endorsement covered by the FTC Act?

Simply posting a picture of a product on social media, such as on Pinterest, or a video of you using it, could convey – even without words – that you like and approve of the product. If it does convey that kind of positive message, the post is an endorsement. Of course, if you don’t have any relationship with the advertiser, your posts aren’t subject to the FTC Act, no matter what you show or say about the product. The FTC Act covers only endorsements that can be attributed to an advertiser or marketer.

Is tagging a brand in a social media post a sufficient disclosure that I have a connection to a brand?

No. Tagging a brand is an endorsement, but it’s not a disclosure that you have a connection to a brand. You could just be tagging it because you like it.

Would a single disclosure on my home page that “many products discussed on this site are provided free by their manufacturers” be enough?

No. A single disclosure on your home page won’t be sufficient because people visiting your site might read individual reviews or watch individual videos without seeing the disclosure on your home page. Even if some viewers read the disclosure, it doesn’t tell them which products were and weren’t provided for free by their manufacturers.

I’ve been paid to make an endorsement in a Facebook post. Can I disclose the relationship in the comments section?

No. A disclosure in the comments to a post is easily avoidable and thus not clear and conspicuous.

Is it good enough if an endorser says “thank you” to the sponsoring company?

No. A “thank you” to a company or a brand doesn’t necessarily communicate that the endorser got something for free or that they were given something in exchange for an endorsement. The endorser could just be thanking a company or brand for providing a great product or service. But “Thanks XYZ for the free product” or “Thanks XYZ for the gift of ABC product” would be good enough – if that’s all you got from XYZ. If that’s too many characters for the format, there’s always “Ad.”

Is “Gifted” a sufficiently clear disclosure?

No. The word “Gifted,” by itself without a brand reference, is likely to be ambiguous. However, “Gifted by XYZ” (when XYZ is a brand name) should be sufficient when all you’ve received is a free product.

Always over-disclose.

That is this firm’s recommendation. If you ever question whether you disclosed enough of a connection to a brand, then you probably are at risk of having fallen short of what is necessary per the FTC’s rules. Air on the side of caution. We have represented influencers who received complaints from the FTC and neither the process nor the penalties are enjoyable to deal with.