As influencer marketing grows on Instagram, FTC-compliant disclosures for sponsored content is taking center stage. Improper disclosure on social media has existed for years, but with millions of sponsored of posts making their way into Instagram feeds each month and 93% of celebrity social media endorsements violating FTC rules, it’s a bigger issue than ever before.
The Federal Trade Commission (FTC) monitors advertising, marketing, and more to guard against deceptive or unfair business practices, and their efforts extend to social media marketing and endorsements. FTC Guidelines for social media marketing outline specific required disclosures, but there are plenty of ways that influencers and brands are breaking the rules — both intentionally and inadvertently. Here are the top 5 ways that brands and influencers are breaking FTC rules on Instagram.
Instagram Stories is the Instagram feature that allows users to create and share ephemeral messages — photos and videos that disappear 24 hours after they’re posted. Designed to be in the moment and spontaneous, Stories have allowed Instagram to compete directly with (and deal significant damage to) Snapchat.
Brands are beginning to partner with influencers for sponsored content on Instagram Stories. Because Stories are immediate and exist outside of a user’s normal feed, they allow creators to explore new types of content that might not otherwise fit with their typical posts. Stories are often times off the cuff and they’ve changed the way that users create, share, and engage with content.
Stories can also be an effective disclosure dodge, though. They only exist on the app for 24 hours, so unless they’re captured via screenshot, once they disappear, it’s as if they were never there at all. They’re nearly impossible for the FTC to police, which means that disclosure rules are difficult to enforce on Stories.
The average Instagram post gets 50% of its comments within 6 hours of posting. Seventy-five percent of the total number of comments are posted within 48 hours. The lifespan of an Instagram post isn’t as short as that of a Tweet or a Facebook post, but most Instagram posts peak less than 2 days after they’re posted.
This means that after a post has been up for a week, it’s achieved most of its impressions and engagement. In an effort to avoid FTC scrutiny, some brands and influencers may delete sponsored posts.
Without proper disclosures, posts may appear more organic, and once they’ve topped out on engagement, deleting a post eliminates evidence of any violation — unless, of course, there are screenshots.
Instagram allows users to edit captions after they’re posted. This is useful for things like correcting typos, updating stories or ideas, and adding hashtags, but it also allows brands and influencers to add disclosures retroactively.
Because the lifespan of Instagram posts is relatively short, brands and influencers add the necessary disclosures several days or weeks after the post has been seen, engaged with, and faded into relative obscurity. By then, most people who are going to see the post have already seen it without the proper FTC required disclosure.
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The FTC says that disclosures 1) are required any time there’s a material connection between a featured brand and the poster, 2) must be “clear and conspicuous” and 3) in close proximity to the content in question.
The clear and conspicuous rule means any disclosure that doesn’t make the material relationship between influencers and brands abundantly clear could come under fire, and the proximity stipulation essentially means that creators can’t use blanket disclosures posted in bios or on external pages, nor can they bury disclosures in a tangled web of hashtags or below the “more” cut on an Instagram post.
#ad and #sponsored are the most common disclosure hashtags and quality as FTC-compliant, but they aren’t necessarily the only form of disclosure.
“We’re not prescriptive about that,” Mary K. Engle, the FTC’s Associate Director for Advertising Practices, told the New York Times in an interview from August 2016. “But it has to be unambiguous.”
Engle said that #sp and #spon aren’t clear enough, but that mentioning the brand as a “partner” might be. The subjective nature of the guidelines has caused some tension, and plenty of violators are breaking the rules unintentionally. But there are also plenty of brands and influencers using intentionally ambiguous hashtags and disclosures in an attempt to inhabit some kind of gray area within the FTC guidelines.
Some brands and influencers know the rules and choose to violate them anyway. FTC disclosures aren’t new, and the issue of disclosure in sponsored content on social media has been covered by major outlets for years.
Even so, many influencers and brands choose not to include disclosures. The reality is that the FTC can’t possibly catch everyone. In 2016 alone, there were 9.7 million posts that included some kind of disclosure. By the end of 2017, that number’s projected to rise to 14.5 million.
Related Post: A History of FTC Violations In Influencer Marketing
What’s more, the major cases in FTC violations thus far have shaped disclosure rules and regulations. Individual influencers have never been on the receiving end of an FTC complaint, and in the major cases against companies like Lord & Taylor, Warner Bros., Machinima, and Sony have been settled with the stipulation that brands put in place more robust practices to guard against future violations.