On the “Influencers”–Nothing New Under the Sun

Bloomberg reports, FTC to Crack Down on Paid Celebrity Posts That Aren’t Clear Ads. Yes, the FTC is saber-rattling on this issue, with its native ads workshop, statements on the issue, and enforcement actions. And the media coverage runs into the same old arguments.  First, “we didn’t intend to mislead.”

We’re venturing into a little bit of ridiculous territory with the FTC saying these things because influencers really want to follow the rules,” Pomponi said. “They want to do a good job — they want to be seen as useful to brands and don’t want to do anything that would jeopardize their relationships.”

That’s great and all, but as an advertiser, you hold the duty to ensure that your messaging is not misleading. You are in control of it. You draft it. You have to anticipate how a reasonable consumer right interpret it. FTCA liability does not require an intent to deceive. The issue is whether endorsements are likely to mislead, even if the deception was an unintentional mistake.

There’s a basic tension here. The point of endorsements, like native advertising, is to create a friendly engagement with the product. However, that friendly engagement may disarm the consumer. When the consumer recognizes material as advertising, it causes the consumer to more skeptically evaluate (or avoid) an advertising claim. Thus, the benefits of secret endorsement are in tension with the goal of enabling consumers to be self-reliant in recognizing commercial persuasion.

Second, there’s something new and different about influencers and ads:

Some advertisers say influencer posts don’t deserve such careful disclosure, because they are not the same thing as a traditional ad. Lauren Diamond Kushner, a partner at Kettle, a creative agency in New York, has worked on influencer campaigns with brands including Sunglass Hut. She said the Instagram stars and YouTubers often only work with the brands that they genuinely like and use.

Wrong! So, before the internet, there was this thing called TV. And on TV, there were celebrities who did ads. Those celebrities too screened products and only did endorsements that were not too embarrassing. (In many cases, real celebrities limit ads so that they only appear outside the US!). And before the TV, there was this thing called radio. And so on.

The “genuinely like and use” argument is baloney. What happens if the influencer changes her mind and stops using it? Do the tweets get deleted?

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