Have you been seeing more “Paid Partnership” or “Advertisement” tags lately while scrolling your feed? This is largely in part due to the FTC’s updated endorsement guidelines, which are even more strict than they were mere months ago. As an agency, you should be aware of the new regulations being imposed on the brands and talent you work with. This article will give you the basic breakdown of the updates so that you can prepare yourself and your team.

Note: This article will be focusing only on the recent updates. If you want to learn about the basics of the FTC Disclosure Guidelines (or need a refresher), check out our previous article.

What is an “unavoidable” disclosure?

A unique term is now being used to describe disclosures, and that is the term “unavoidable”. This means, in essence, that a viewer must be confronted with a disclosure as soon as the content appears in front of them. Disclosures can no longer appear at the end of a description, they can’t be linked separately, and they can’t appear at the end of a video. If your viewer sees your content, they need to see (and actually perceive) the disclosure as well.

Specifically regarding TikTok, the FTC has stated that disclosures need to be much more prominent due to the many distracting elements common in TikTok videos. This means that hashtag disclosures (#ad, #sponsored) or tagging the brand are no longer sufficient. Rather, the disclosure needs to be superimposed on the video itself and clearly visible to the viewer throughout the video’s length. The badge provided by TikTok’s disclosure tool is currently likely sufficient for meeting this requirement, but keep an eye on it in the months to come to ensure you remain compliant.

For other types of video content, a prominent superimposed disclosure on the video itself is also recommended. Live videos should have visual and audio disclosures present at the beginning as well as periodically throughout the stream. For other content where hashtag disclosures are permitted, they must not fall “below the fold”, which means a viewer should not have to click “expand to see more” or otherwise visit a link to see the disclosures.

For more information about specific situations you may be encountering, we recommend visiting the FTC’s FAQs, which contain helpful tips and information.

When must a disclosure be provided?

A disclosure should be provided in traditional, obvious situations (paid partnerships, sponsored content, etc.). However, the FTC has made clear that disclosures must also be made in situations where talent has been provided with free gifts and samples, including promotional packages. If your brand is sending out samples or other free gifts, consider including an informational card or guide with the product to ensure that the recipient is well-informed.

It should also be noted that disclosure requirements apply when talent has a material connection to the brand and posts content featuring a brand product – even when the content has not been commissioned by the brand. For example, if you are working with talent on producing static photo deliverables but they post a “get ready with me” video where a brand product is featured, the disclosure is still required.

Lastly, disclosure requirements now apply when a post is talking negatively about a competitor brand (which may commonly be referred to as “deinfluencing”). The FTC has decided that it is essential for the audience to understand the negative review may not be unbiased, and the disclosure must therefore be provided.

What about social platform rules and tools?

Social platforms will also likely be tightening up their rules and providing additional tools for disclosure compliance. As a user of the platform, you are contractually obligated to comply with the rules of the social platform, even if they are stricter than the FTC. However, if the FTC’s rules are more strict than the social platform’s rules and disclosure tools, the FTC’s regulations will take precedent, and you may need to take extra steps to ensure compliance.

Is there anything else worth noting?

One change worth noting is the fact that requests for product or service reviews cannot be sent or available only to those people who are likely to provide positive reviews. Reviews must be sent out and/or open to all relevant consumers to allow for the opportunity for an honest evaluation of the product or service.

Another unique update is that non-US talent posting content for a US audience must also abide by the FTC rules. The trigger here is not the citizenship of the talent, but rather that of the audience.

Those are a lot of restrictions – should I update my influencer agreements?

It is a great idea to take another look at your talent/influencer agreements. You may find that you need to add stricter language or additional guidance. In all circumstances, however, ensure that the talent understands they are also liable for FTC compliance, and that they cannot rely on you or the brand to ensure disclosure requirements are met. They also need to accept liability for mistakes and further agree to correct non-compliant posts immediately. Lastly, they should also protect (indemnify) the agency and the brand from any violations of FTC/platform rules and failures to correct mistakes.

In any circumstance, there is a lot of nuance to the language especially as it relates to other parts of your contract, so please consult your lawyers about the specifics.

NOTE: While we hope these “top tips” will help you with the majority of your projects, every situation is different. As a result, we strongly encourage you to (1) review the FTC’s new updates, and (2) talk to your lawyer about specific rules that might impact you and the brands you work with.