“Unavoidable” disclosure is a confusing concept. On the one hand, a social media influencer might think: “Well, yes, disclosures are unavoidable since I am required to make disclosures.” However, the concept of “unavoidable” disclosure is not about providing disclosures. Rather, “unavoidable” disclosures are evaluated from the viewpoint of the person consuming the content of a social media influencer and receiving the disclosures.

The issue of unavoidable disclosures has arisen lately because, in mid-2023, the Federal Trade Commission (“FTC”) issued a revised set of advertising and disclosure guidelines applicable to social media influencers. The FTC also revised its companion Q&A statement — “What People Are Asking?” — meant to be understandable for non-lawyers. The FTC is one of the main federal regulators tasked with preventing and punishing false advertising and deceptive business practices. The new guidelines provided many important clarifications, but, at the same time, they also generated some confusion. In particular, confusion was created by the idea that disclosures must be “unavoidable.” Here is a quick explanation.

Social media influencers are required to disclose that they are engaged in advertising. More particularly, they must disclose that they are being paid — in some manner — for endorsing a product or service. Payment can, of course, come in many forms, like free products, advance access to products, free trips and travel, money, and much more.

Further, any and all disclosures must be made in a manner that is “clear and conspicuous.” This is where the concept of “unavoidable” comes in. A “clear and conspicuous” disclosure is “unavoidable” from the standpoint of the viewer/listener/reader. Thus, the FTC guidelines define “clear and conspicuous” to mean that ” … a disclosure is difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers.” The guidelines go on to state that “[i]n any communication using an interactive electronic medium, such as social media or the internet, the disclosure should be unavoidable“(emphasis added).

The guidelines provide more information which can be summarized as follows:

• The endorsement and the disclosure must be together in the same content — thus, disclosures on hyperlinks, on other pages or videos, “down below in the comments section,” on “biography” pages, “built-in” site or platform disclosures, tags, and the like, are NOT clear and convincing because these are examples of AVOIDABLE disclosures
• If an endorsement is visual, the disclosure should also appear in the visual portion of the content; if made through audible means, the disclosure should be audible; if the endorsement is both visual and audio, then the disclosure should be — must be — in both means
• An audio disclosure is clear and conspicuous if delivered in a volume, speed, and cadence sufficient for ordinary consumers to easily hear and understand it
• A visual disclosure is clear and conspicuous — cannot be missed and is unavoidable — if its size, contrast, location, the length of time it appears, and other characteristics make it stand out from accompanying text or other visual elements

Contact the Social Media Influencer Attorneys at Revision Legal

For more information, contact the experienced Social Media Influencer Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.