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Regulation of Social Media Influencers

If you’ve engaged with social media in the past few years, the chances are high that you’ve encountered an influencer. You probably even follow them, interact with their content, and the chances are high that you’ve actually been “influenced” by at least one. Influencers are social media content creators with significant followings. They share their content with the goal of influencing their following. There are many different types of influencers ranging from A-list celebrities like Kim Kardashian, who has 210 million followers on Instagram, to so-called “micro influencers,” who have smaller followings of a few thousand.1 Influencers typically have a focus. Examples include lifestyle, fashion, beauty, health and fitness, kids, gaming, and many more. Instagram is the most popular platform for influencers, but influencers can similarly be found on Tik Tok, Snapchat, Facebook, YouTube, and LinkedIn.2

Influencer marketing is a partnership between an influencer and a brand in which the brand pays the influencer to promote their product.3 Influencer advertisements are generally seen by consumers as more authentic and attracting, which increases the effectiveness of the ad.4 In fact, influencer advertisements are so effective that 60% of Americans in a recent poll bought something based on an influencer ad in the past six months.5 Due in large part to its effectiveness, this modern approach to marketing is a rapidly growing industry expected to be worth $15 billion by 2022.6  The rapid expansion of influencer marketing, as well as its extreme effectiveness on consumers, has resulted in the need for regulations. Currently the Federal Trade Commission (FTC) is the main regulator of the influencer industry as it has released a series of guidelines that impose requirements on influencers and in recent years has taken enforcement action against both brands and influencers who have failed to comply. Some social media platforms also have policies influencers must follow on their platforms. As the industry continues to grow, influencers must keep up with current guidelines and be aware there will likely be updates to the FTC guidelines and social media policies, as well as new regulations imposed on influencers by government agencies like the Food and Drug Administration (FDA).

FTC Regulations and Guidelines 

The FTC is established by the Federal Trade Commission Act. Under 15 U.S.C. § 45(a), the FTC is empowered to “prevent unfair methods of competition and unfair or deceptive acts or practices in or affecting commerce.” Utilizing this authority, the FTC has released guidelines for endorsements for advertising.7 The first set of guidelines was released in 1980, a time before the rise of influencers. These guidelines did not require that payments to an expert or celebrity be disclosed because the FTC assumed that a partnership between a brand and expert or celebrity would be obvious to consumers.8 In 2009, the FTC released updated guidelines titled “Guides Concerning the Use of Endorsements and Testimonials in Advertising.”9 Under the 2009 guidelines disclosure was required when the endorser had a “material connection” to the seller of a product.10. The guidelines further clarified that the post of a blogger who receives payment to review a product is included in the term “endorsement,” and bloggers who make such disclosures must disclose the material connection they share with the seller.11 Further, an endorsement is deceptive if it makes false or misleading claims.12 The FTC once again released updated guidelines in 2013 called “.Com Disclosures: How to Make Effective Disclosures in Digital Advertising.”13 These guidelines reinforced the material connections disclosure requirement from the 2009 guidelines.14 They further required advertisements “be clear, conspicuous, and proximate to any ad content that requires qualifications or disclosures to prevent deception.”15 Accompanying these guidelines, the FTC released an FAQ list to help celebrities and influencers in complying with FTC regulations.16

The burden of disclosure falls on the influencer, as opposed to the partnering company. As a result, the FTC has more recently released documents and videos laying out the requirements for influencers in plain language. In one such document, “Disclosures 101 for Social Media Influencers,” the FTC emphasizes that the responsibility of disclosure falls on the influencer.17 The document defines “material connection” as “a personal, family, or employment relationship or a financial relationship” between an influencer and a brand.18 It also lays out the requirements for “clear and conspicuous” disclosure explaining that consumers must “see and understand” the disclosure and the disclosure should be placed within the endorsement message.19 Disclosures 101 explains that simple and clear language is the best way to disclose and recommends language like “advertisement,” “ad,” “sponsored,” etc. and discourages the use of vague or confusing terms such as “collab” or “ambassador.”20 The FTC has also released videos explaining these requirements, which can easily be found on YouTube. For example, a video titled “Advice for Social Media Influencers” is available on YouTube and features an FTC attorney explaining the guidelines and requirements.21

FTC Enforcement

Despite these guidelines and the efforts made to provide easily understandable resources, the occurrence of improper influencer marketing is high. In 2017 it was estimated that 93% of influencer marketing violates FTC guidelines.22 In recent years the FTC has begun to resolve some of these matters. In 2016, Lord & Taylor, a department store, partnered with 50 influencers.23 The influencers posted photos on their social media platforms wearing dresses from the store, but the posts did not include a disclosure.24 The FTC and Lord & Taylor reached a settlement agreement which required Lord & Taylor to take steps to ensure that there was clear disclosure by its paid endorser, including monitoring the influencer’s posts and keeping records of those monitoring efforts.25 The following year the FTC sent over 100 letters to influencers reminding them of the disclosure requirements.26 Later, in 2017, the FTC pursued its first enforcement action against individual influencers when two gaming influencers failed to disclose ownership of a company they were promoting. This action resulted in a settlement.27

The FTC also settled with Teami over an influencer marketing issue in 2018.28 Teami sold teas falsely claiming they could cause weight loss and fight cancerous cells, among other assorted health claims.29 The teas were advertised through partnerships with influencers and celebrities, including rapper Cardi B and American Idol winner Jordin Sparks, which entailed endorsing their products on Instagram. In addition to the false claims, the endorsed posts failed to include a disclosure.30 The FTC sent warning letters to the influencers who were involved and settled with Teami.31 The settlement prohibits deceptive health claims and requires the clear and conspicuous disclosure of any unexpected material connection.32 Similarly to the Lord & Taylor settlement, it also requires Teami to maintain a system that monitors how influencers are disclosing the material connections.33

Social Media Platform Policies

In addition to complying with FTC regulations, influencers are subject to requirements put forth by the social media platforms they post on. Instagram’s policies “require anyone, no matter if they’re on a creator, business or personal account, to tag business partners in their branded content posts when there’s an exchange of value between a creator or publisher and a business partner.”34 Similarly, YouTube allows paid product placements, endorsements, and sponsorships on their platform.35 However, YouTube requires that the creator let them know of the paid content when posting the video and further stipulates that “[y]ou and the brands you work with are responsible for understanding and complying with their local and legal obligations to disclose Paid Promotion in their content. Some of these obligations include when and how to disclose, and to whom to disclose.”36

Looking Forward

As the influencer industry continues to go, both brands and influencers will be subjected to changing and new regulations. In 2020, the FTC called for public comments on their guidelines related to influencers and endorsement and whether they need to be updated.37 Commissioner Rohit Chopra also released a statement giving perspective on potential areas for updating.38 Also, the FDA recently announced they will be conducting studies to evaluate how consumers respond to different types of influencers and payment disclosures in relation to health products.39 In order to protect themselves from liability and agency enforcement, both influencers and brands need to ensure compliance with the current regulations, as well as keep up to date with changes and potential future regulations.

  1. Influencer Marketing: Social Media Influencer Market Stats and Research for 2021, Bus. Insider (Jan. 6, 2021, 10:19 AM), 

  2. Id. 

  3. Gachoucha Kretz, What Is Influencer Marketing and Where Is It Headed?, Forbes (Jan. 22, 2020, 4:45 PM), 

  4. Christoph Kastenholz, The Importance of Influencer Marketing in the “New Normal” Digital Sphere, Forbes (Mar. 2, 2021, 7:20 AM), 

  5. Jason Falls, Why Consumers Care About Influencers, and Why You Should Too, Entrepreneur (Feb. 10, 2021), 

  6. Influencer Marketing: Social Media Influencer Market Stats and Research, supra note 1. 

  7. Elizabeth A. Casale, Influencing the FTC to Update Disclosure Rules for the Social Media Era, 40 Mitchell Hamline L. J. Pub. Pol’y & Prac. 1, 10 (2019). 

  8. Id. at 11. 

  9. Id. 

  10. Id. 

  11. Id. 

  12. Id. 

  13. Id. 

  14. Id. 

  15. Id. at 12. 

  16. Id. 

  17. Federal Trade Commission, Disclosures 101 for Social Media Influencers (2019). 

  18. Id. 

  19. Id. 

  20. Id. 

  21. Federal Trade Commission, Advice for Social Media Influencers, YouTube (Nov. 5, 2019), 

  22. Casale, supra note 7, at 12. 

  23. Debevoise & Plimpton, Client Update: The FTC Draws the Line on Native Advertising (2016). 

  24. Id. 

  25. Id. 

  26. Casale, supra note 7, at 13. 

  27. Id. at 14. 

  28. Lesley Fair, FTC’s Teami Case: Spilling the Tea About Influencers and Advertisers, FTC Bus. Blog (Mar. 6, 2020, 11:22 AM), 

  29. Id. 

  30. Id. 

  31. Id. 

  32. Id. 

  33. Id. 

  34. Branded Content on Instagram, Instagram, (last visited Mar. 31, 2021). 

  35. Add Paid Product Placements, Sponsorships & Endorsements, YouTube, (last visited Mar. 31, 2021). 

  36. Id

  37. Statement of Commissioner Rohit Chopra Regarding the Endorsement Guides Review (2020), 

  38. Id. 

  39. Raqiyyah Pippins et al., All Eyes on Influencers: FDA and FTC Examination of Endorser Advertising Signals Global Focus on Social Media (Feb. 25, 2020),