FTC Endorsement Guide Changes 2023

June 29, 2023: The Federal Trade Commission [FTC] released updates to its Endorsement Guides in an 84-page document titled “16 CFR Part 255: Guides Concerning the Use of Endorsements and Testimonials in Advertising”.

What is the FTC Endorsement Guide?

These guides are the rules that all creators & brands must follow in regard to disclosing their connection to each other when it comes to sponsorships, advertisements, employment, and other factors.

Do all creators have to follow the FTC guidelines?

If your content is viewed by U.S. consumers, this U.S. law applies to your content. It’s important to note that most countries also have advertising laws to adhere to, so head those laws respectively to ensure a smooth advertising experience.

In an effort to help make sense of that document and the updates within for all, the FTC also published “What People Are Asking” – a comprehensive Q&A about the changes.

To help break it down even further, a Twitter thread created by lawyer Rob Freund – who works with creators, brands, and agencies – helps point out the more pertinent information for those in the industry:

What You Need to Know About June 2023 FTC Changes to Endorsement Guidelines!

1. It will no longer be enough to just put #ad in the description of TikTok videos, due to the small size text used on the app. Put your #ad text overlaid onto your video instead!

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.
Information provided by ftc.gov

2. Speaking negatively about a brand that is in direct competition with your paid relationships now requires disclosure.

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.
Information provided by ftc.gov

3. “Any publicity is good publicity” now also applies to endorsements; the photo or video post itself doesn’t need to mention anything positive about the company or brand to be considered an endorsement for companies you work with.

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.
Information provided by ftc.gov

4. International creators that make content that could potentially be seen by U.S. consumers must comply with the FTC rules.

I’m a video blogger who lives in London. I create sponsored videos on YouTube for products that are also sold in the U.S. Do I need to tell my viewers that I’ve been paid to endorse the products even though I don’t live in the U.S.?
If it’s reasonably foreseeable that your YouTube videos will be seen by and impact U.S. consumers, U.S. law would apply and you would need a disclosure. Also, the U.K. and many other countries have similar laws and policies relating to endorsements. So, you’ll want to check those, too.
Information provided by ftc.gov

5. In order to disclose a relationship with a brand, the post will require more than simply tagging the brand. As you could just be tagging the brand because you like them.

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.
Information provided by ftc.gov

6. A single disclosure on a website or social media page cannot be used as a blanket-solution for creators that work with several brands over time. Disclose each new relationship, make clear which products are free or not.

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.
Information provided by ftc.gov

7. Hyperlinked disclosure, like using a button that says “DISCLOSURE”, is insufficient because it does not make the disclosure immediately available.

Would a button on a web page that says DISCLOSURE or LEGAL or something like that be enough, so long as the button links to a full disclosure?
No. A hyperlinked disclosure like that is easily avoidable, meaning that the disclosure is not clear and conspicuous. Many consumers won’t click on it and will miss the disclosure. Usually, your disclosure can be brief and there is no space-related reason to use a hyperlink to provide access to it.
Information provided by ftc.gov

8. When posting endorsements on Facebook, you must make the disclosure within the post and / or content. You cannot post that information in the comments below the post.

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.
Information provided by ftc.gov

9. Saying “thank you” is not enough to clearly disclose a relationship with a brand. Always be sure to let your audience know what you are thankful for, when it comes to sponsorships, gifts, or merch.

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.”
Information provided by ftc.gov

10. When disclosing a gifted product or products, it is not enough to simply state “GIFTED”. The brand must be included as well as clearly stated text.

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.
Information provided by ftc.gov

11. Waiting until the end of a blog post or advertorial is no longer permitted. All posts must place the disclosure somewhere clear and visible.

Where in my blog should I disclose that my review is sponsored by a marketer? Does it matter if the disclosure is at the top or at the bottom?
Yes, it matters. A disclosure should be placed where it easily catches consumers’ attention and is difficult to miss. Readers might overlook a disclosure at the very top of the page, outside of the blog. Their eyes will probably be drawn to a picture or a headline, and they will then probably read down. Consumers may miss a disclosure at the bottom of a blog or page. Many won’t read to the very end or look after the end of the blog itself. A disclosure is more likely to be seen if it’s very close to, or – even better – part of, the endorsement to which it relates.
Information provided by ftc.gov

12. Review links that target only satisfied customers, and similar are not permitted.

My company would like to get more online reviews by sending a link to a review page to customers in specific regions where we have the highest customer satisfaction. We would not send a link to customers in areas where we know our customer experience is poor. Is that OK?
No. Only asking for reviews from customers who you think are more likely to be happy with your product would be misleading if it substantially skews the favorability of the reviews.
Information provided by ftc.gov

13. Alternatively, you cannot ask unsatisfied customers to change or delete their reviews.

Is there anything wrong with contacting customers who left negative reviews and trying to make them happy? If I succeed, can I ask them to change their reviews?
You’re welcome to contact unhappy customers and respond to their concerns. You can also ask them if they’ll add updates to their reviews. However, asking them to change or delete their initial negative reviews could mislead readers.
Information provided by ftc.gov

14. Creators will  “clearly and conspicuously disclose” if any product is given for free. They must do so every time they post about it. Brands must make these guidelines & rules of disclosure available to all those they send unsolicited gifts to.

For influencers who only get free products, is just sending them training material sufficient?
It’s important, but insufficient. If a company sends influencers a free unsolicited product and nothing else, it should ask them to clearly and conspicuously disclose the gift in any resulting social media posts or other endorsements, tell them how it should be disclosed, and ask them to tag the brand. The company should monitor the resulting tagged posts. We understand that software solutions exist to monitor compliance online. The FTC takes no position on their quality and recognizes that software like that might be too expensive for some companies. The extent of compliance monitoring needed, whether or not you use such software, may depend upon the types of products and possible claims involved, e.g., whether the claims involve health or safety.

Also, even if the only things you’re sending influencers are unsolicited free products, you’re still on the hook for their deceptive claims, so the training material should describe what they can and can’t say about your products.
Information provided by ftc.gov

It is extremely important that all content creators, influencers, and brands stay up to date on the latest guidelines.

Staying informed and making sure to implement the new updates will ensure an uninterrupted content flow. In addition, it will also provide a copasetic relationship between yourself, the brands you work for, and the FTC! 

For more news and guides on all things related to content creation & streaming, check out StreamerSquare for the latest.

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