FTC Disclosure Guidelines: What You (and Kim Kardashian) Need to Know
A contentious disclosure by Kim Kardashian recently put endorsement transparency and FTC-compliance back on the agenda.
The controversy revolved around an Instagram post in which she claimed to be “so excited and happy” after using Diclegis, an anti-nausea drug, that she was “partnering” with the company “to raise awareness about treating morning sickness.”
Of course, the makers of Diclegis had paid Kim to make the statement. But was the subtle “partnering” disclosure enough?
According to the FTC, the same consumer protection laws against “unfair or deceptive acts or practices” that apply to commercial activities in other media apply online, including activities on social media and in mobile channels.
FTC guidelines state that disclosure needs to occur whenever a company provides a third-party content producer (celebrities included) some form of compensation. This could take the form of money, gifts, and complimentary services.
In addition, the burden is on the brand to ensure the content producer uses the appropriate disclosure. This means the FTC expects a representative from the brand to contact the influencer/blogger with guidance on how to disclose effectively if the blogger has not been clear on the dealings with the brand.
Disclosure can take many forms. At a basic level it is a public acknowledgement that a relationship exists between the content producer and the brand. For example, adding #client to the end of a Tweet, or mentioning a brand’s generous offer of free product at the beginning of a blog featuring the product are both legitimate forms of disclosure.
To make a disclosure clear and conspicuous, advertisers/marketers/communicators should consider:
Placement & Proximity: The placement of the disclosure in the advertisement and its proximity to the claim. For example, it can’t just be added to the bottom of the blog post.
Prominence: It is the communicator’s responsibility to draw attention to the required disclosures. This can be done through ensuring the disclosure is the appropriate format – text size, color – and that it’s not overwhelmed by other content and buried in text.
Distractions: Organizations cannot actively direct attention away from the disclosure, distracting the consumer of the content.
Repetition: Is one disclosure enough? Or does the disclosure need to be repeated to be effective? Consider how audience is consuming the message, and is it possible for them to have missed the disclosure. For example, including “we tweet about our clients” on a PR agency’s profile page isn’t adequate, as most people don’t view tweets on the profile page. Instead, a disclosure needs to be made with each individual tweet.
Language: Is the language of the disclosure understandable to the intended audience? If you are targeting a consumer audience, it should not be framed in technical language or legal speak.
Check out the FTC website for the comprehensive disclosure guide.
Taking these guidelines into consideration, it’s probably safe to say the use of the word “partnering” was too vague and ambiguous. Kim and Diclegis messed up.
When in doubt it’s best for brands (and the influencers they work with) to lean on the side of clarity and transparency.
What does your company’s social media policy say about disclosure and transparency? And when was the last time you circulated it around the organization to remind employees of their disclosure obligations?