Sponsored Content and Posting the Right Way

Ever watch an old television show and notice the not-so-subtle product placement that was so commonplace back then? “Gee, Mary, these dishes sure are clean. You must be using Palmolive soap again!” Fast forward 65 years and sponsored content is still alive, but the medium and pitchmen have changed. Influencers and celebrities use Instagram and other platforms to make big money. But times are a-changin’ again, thanks to crackdowns -- er, gentle reminders -- by the FTC.

Background

In April of this year, the Federal Trade Commission sent out over 90 letters to influencers on Instagram. (Read more in the FTC’s press release, “FTC Staff Reminds Influencers and Brands to Clearly Disclose Relationship.”) The letters stated that influencers “should clearly and conspicuously disclose their relationships to brands when promoting or endorsing products through social media.” Comments like “Thanks, [brand/sponsor]” or tags like #partner are not enough, according to the FTC.

Fast forward to June 2017, when Instagram announced  a soon-to-be-offered “paid partnership with” tag.  The intent in rolling out this feature was to promote transparency by those posting sponsored content. "Launching the 'Paid partnership with' tag is the first step in ensuring transparency of paid partnerships on Instagram," the platform said.

Complying When Posting Sponsored Content

There’s one problem, though. Last month, during a live twitter chat under the hashtag #Influencers101, the FTC stated that it “doesn’t think that the built-in YouTube and Facebook tools suffice” to show that sponsored content is part of a paid promotion. This means that using Instagram’s “paid partnership with” feature alone probably isn’t enough.

The Fashion Law posted the FTC’s nifty infographic on the topic. (It also posted a full transcript of questions asked during the #Influencers101 chat, available at the same link.) To recap, though, below are the important takeaways:

• If you have a promotional or endorsement relationship with a brand, clearly disclose it.
• A clear disclosure stands out or is hard to miss.
• Don’t assume your followers can “just tell” when content is sponsored.
• It's not necessary to disclose the amount you’ve been paid for the post.
• Hashtags such as #ad or #paid mixed in with links or other hashtags are likely not enough for most platforms. Remember that “clear disclosure” means “hard to miss.”
• Don’t assume built-in features on any platform (e.g., Instagram, YouTube, Facebook) are enough.
• For image-only media (Snapchat, Instagram Stories, some Pinterest posts), superimpose your disclosures on top of the image(s).
• U.S. law applies when posts will affect U.S. consumers.
• If a company sends something to an influencer for free, with no demand to post and no payment, and the influencer posts about it because she likes it, that’s an ad. Disclose that sponsored content!
• Don’t be ambiguous when it comes to sponsored content.

The Point: Ambiguous disclosures = bad. Standing out = good. The bottom line is, when posting sponsored content on the Internet, it’s a best practice to consistently include clear markings. Resources like the FTC’s Endorsement Guides  provide some basic guidance on the topic.