4As Submits Written Comments Highlighting Agency Concerns with Revised FTC Endorsement Guides

On July 26, 2022 the Federal Trade Commission (FTC) published a notice in the Federal Register soliciting public comment on its Guides Concerning the Use of Endorsements and Testimonials in Advertising (“Endorsement Guides”) (Document ID: FTC-2022-0047-0001). The FTC’s recommended updates to its Endorsement Guides are intended to reflect “the new ways that advertisers now reach consumers to promote products and services, including through social media.”

To share the unique agency perspective, the 4As submitted written comments concerning proposed changes to the Endorsement Guides on September 26, 2022. These comments highlighted several key areas of concern, including focusing on the following areas:

• Asking the FTC for more guidance on imposed direct liability for advertising agencies for their clients’ legal compliance with the Guides;
• Seeking clarification on the amount of guidance, education, and training on proper disclosures that is necessary for agencies and their clients to impose upon their contracted influencers in order to remain compliant;
• Requesting the creation of a safe harbor for agencies if they follow industry best practices for influencer marketing and proper disclosures;
• Determining the level of due diligence that is expected of an agency or advertiser to investigate if an influencer they’ve been working with has been buying fake social media followers;
• Ascertaining where potential liability rests in a case where a contracted influencer uses a social media platform’s built-in disclosure tools that do not comply with FTC requirements; 
• Establishing what kind of time periods are reasonable for influencer content monitoring in order for advertisers and agencies not to be implicated in a failure to disclose because a past endorsement relationship is no longer active; and
• Advocating for the value of self regulation in policing advertisers who fail to disclose necessary material connections in their influencer marketing campaigns.

The Endorsement Guides, first enacted in 1980 and last amended in 2009, provide guidance to businesses and others to ensure that advertising using endorsements or testimonials is truthful and transparent. Importantly, agencies and advertisers that fail to comply with the FTC Endorsement Guides may violate Section 5 of the FTC Act. 

For additional endorser and influencer disclosure guidance, marketers can look beyond the Endorsement Guides to other helpful compliance clues such as the Endorsement Guides FAQs, warning letters, consent orders, and other guidance documents.

Want to learn more about the FTC Endorsement Guides? Contact Alison Pepper.