Proposed Changes to FTC Endorsement Guides
On May 19, the FTC released proposed changes to the “Guides Concerning the Use of Endorsement and Testimonials in Advertising”, which are now open to public comment. If enacted they would impact affiliate marketing activities, as these changes pertain in large part to the use of social media and product reviews.
Suggested in these updates is the specific inclusion of affiliate marketing in the Guides, outlining Advertiser, Affiliate (including Influencers), and Intermediary liability:
- Advertisers can be held liable for the lack of affiliate disclosures, and should provide guidance to Affiliates regarding proper disclosure, monitor them for compliance, and take action when non-compliance occurs
- Affiliates may be responsible for failure to disclose a non-obvious relationship between themselves and an Advertiser
- Intermediaries may be held liable for cases in which endorsers are hired and directed by the Intermediary but then fail to disclose endorsement (dependent on how the Intermediary instructed the endorser)
Additionally, guidance was proposed that endorsements targeting a specific audience (children, older adults, etc.) will be evaluated from the perspective of that group. The PMA provided comments requesting that social media platforms build in disclosure tools sufficient to satisfy the Guides.
For a deeper dive, the PMA’s own Christen Evans and Tricia Meyer held a video chat on LinkedIn regarding the FTC’s proposed changes, which you can view here.
If you’d like to provide your input on the these changes, suggestions can be submitted at https://www.regulations.gov/document/FTC-2022-0035-0001.