“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

The FTC’s 2023 Endorsement Guide Revisions: Key Changes

The Federal Trade Commission’s 2023 revision to 16 C.F.R. Part 255 introduced several significant changes beyond the “unavoidable” disclosure standard. First, the revised guides explicitly extend disclosure obligations to consumers who post about products or services they received for free, even in the absence of a formal influencer agreement. Second, the guides now specifically address virtual influencers — AI-generated or computer-generated personas — and require that their relationship with advertisers be disclosed. Third, the guides clarify that tagging a brand in a post does not substitute for a disclosure; the endorser-advertiser relationship must be stated affirmatively and conspicuously.

The revised guides also tighten standards for “endorsers” in the context of consumer review platforms and social media. If an endorser’s relationship with an advertiser might materially affect the weight a reader gives to the review or post, disclosure is required regardless of the format — written post, short-form video, live stream, audio podcast, or image-only post. There is no format exception.

Platform-Specific Disclosure Mechanics

Different platforms have different technical capabilities, and the FTC’s guidelines must be applied consistently across all of them. On Instagram, a “Paid partnership” label enabled through the app’s branded content tool is not automatically sufficient — the disclosure must still be unavoidable, meaning it must appear in the first one or two lines of a caption, not buried after a “more” truncation. On TikTok, superimposed text disclosures must remain on screen long enough to be read at normal playback speed; a disclosure that flashes for half a second fails the standard. On YouTube, verbal disclosures during a video must appear at the beginning of the content, not midway through or in the description box.

The FTC’s Q&A guidance is explicit that platform-provided disclosure tools (such as Instagram’s “Paid partnership” tag) do not automatically satisfy the endorsement guide requirements. Influencers who rely solely on platform mechanisms without adding their own affirmative disclosure language take a compliance risk.

Enforcement Consequences: Civil Penalties and Injunctions

Until 2021, the FTC could not seek civil penalties directly against first-time violators of the endorsement guides. That changed with AMG Capital Management LLC v. FTC, 593 U.S. 67 (2021), which limited the FTC’s ability to seek monetary relief under Section 13(b). In response, Congress passed the COVID-19 Consumer Protection Act and the FTC began pursuing civil penalty authority more aggressively under Section 5(m). Individual influencers who receive a warning letter and continue non-compliant practices can face civil penalties of up to $51,744 per violation. Brands and agencies that direct non-compliant campaigns face similar exposure. The FTC has issued numerous warning letters to influencers across health, gaming, cosmetics, and financial services sectors since 2023, and follow-up enforcement actions have resulted in consent decrees and monetary penalties.

Drafting Compliant Disclosure Language

The FTC endorsement guides do not mandate specific language, but they identify disclosures that clearly work. Phrases like “#ad,” “Advertisement,” “Sponsored,” or “Paid Partnership with [Brand]” placed prominently at the beginning of a post or in the opening seconds of a video meet the standard in most contexts. Vague terms like “#collab,” “#ambassador,” “#spon,” or “#gifted” are often insufficient because the average viewer may not recognize them as disclosures of a paid relationship. Influencers should test their disclosure language against the ordinary consumer standard: would a reasonable person who sees or hears the disclosure immediately understand that the content is paid advertising?

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.