What a Paid Influencer Has to Disclose

The short answer

When a connection between an endorser and a seller might materially affect the weight or credibility of the endorsement, and the audience would not reasonably expect it, the connection must be disclosed clearly and conspicuously.

That is the whole test, and it turns on the audience's expectations rather than on the size of the payment.

It also does not require a confession. A disclosure does not have to give the complete details of the arrangement, but it must communicate the nature of the connection well enough for people to judge how much it matters.

The reason this catches so much health marketing is that a recommendation is worth more when it looks unpaid, which is exactly the value the rule makes visible.

What counts as a material connection

The Endorsement Guides list the categories rather than leaving it to instinct.

Relationships count. A business, family or personal relationship between the endorser and the seller can be a material connection.

Money counts, and so does everything money-adjacent. Payment, or free or discounted products, is included. The Guides add that free products count even when they are unrelated to the thing being endorsed, and even when the advertiser did not require an endorsement in return.

Non-cash benefits count. The Guides name early access to a product, the possibility of being paid, the possibility of winning a prize, and the possibility of appearing on television or in other media promotions.

Not every link matters. Some connections are immaterial because they are too insignificant to affect the weight or credibility of an endorsement.

The threshold is set by the audience, not by the parties. A material connection needs to be disclosed when a significant minority of the audience for the endorsement does not understand or expect it.

Where an endorsement begins

Before the disclosure question arises, something has to count as an endorsement, and the definition is wider than a review.

An endorsement is any advertising, marketing or promotional message that consumers are likely to believe reflects the opinions, beliefs, findings or experiences of someone other than the sponsoring advertiser. Tags in social media posts are named in the definition, as are demonstrations and the use of a person's likeness.

The Guides push this further with a case that involves no recommendation at all. A well-known game player is paid to play and stream a new game and appears to enjoy it. Even without a spoken recommendation, the gameplay is an endorsement, because the apparent enjoyment is implicitly a recommendation.

The same logic reaches accounts that are not people. Where a manufacturer sends a year of free product to the owner of a popular animal account and asks for the brand to be featured, the resulting posts are endorsements.

And the sponsored post can be silent. A video of a recognizable professional using a product, posted to their own account, is an endorsement if viewers can identify the brand — whether from the footage or from a tag.

When no disclosure is needed

The Guides are not maximalist about this, and the exceptions are as instructive as the rules.

A film star endorsing a food product in a television commercial needs no payment disclosure, because viewers already expect that a star in a commercial was paid. The Guides say that holds whether the compensation is a lump sum or a royalty on every sale.

A podcast host reading what is obviously a commercial needs no disclosure of payment either, because listeners would expect it. The Guides add a condition: if the wording leads the audience to think the host is expressing their own views, the host has to actually hold those views.

A talk show guest wearing branded clothing under an endorsement contract needs no disclosure while they say nothing about the clothes, because no representation about them is being made.

A seal of approval that consumers would expect a company to pay for does not require disclosing the fee.

The thread through all four is expectation. Disclosure exists to close a gap between what the audience assumes and what is true.

The same person, a different surface

This is the pattern the Guides return to most often, and it is the one that trips up professionals.

A physician appearing in a television advertisement for a product is someone viewers expect to be compensated. But viewers are unlikely to expect that the physician takes a percentage of sales or owns part of the company, and either fact would materially affect credibility. Those connections should be disclosed.

Move the same physician to a social media post and the baseline changes. In that setting, the Guides say people might not expect compensation at all, and might be more likely to read the post as an independent professional opinion. The post should disclose the connection.

The Guides run the same comparison with a celebrity discussing a medical procedure on a talk show. Without a clear and conspicuous disclosure during the interview that the person is engaged as a spokesperson, the endorsement is likely to be deceptive. A disclosure during the closing credits would not be clear and conspicuous.

The version of that example involving free or discounted treatment is worth noting. The Guides say the relationship should be disclosed even where there is no payment and the person simply received the procedure free or at significantly reduced cost.

There is a third round to it. Consider a clinic reposting the endorser's message to its own account. Where the original either carried no disclosure or carries one that does not appear clearly in the repost, the clinic should disclose the relationship there.

How staff guidance says to actually write one

The Commission's staff has published a short brochure for influencers. It is staff guidance, and the Guides themselves note that staff guidance of this kind is not approved by or binding upon the Commission. So it is a practical account of what staff considers workable, rather than a rule.

On when: disclose any financial, employment, personal or family relationship with a brand. Financial relationships are not limited to money; disclose if you got anything of value to mention a product. Disclose free or discounted products and perks even where you were not asked to mention them.

It also closes two rationalizations. Do not assume followers already know about your brand relationships, and make disclosures even if you think your evaluations are unbiased.

On where: place the disclosure with the endorsement message itself, so it is hard to miss. It says disclosures are likely to be missed if they appear only on a profile page, at the end of posts or videos, or anywhere requiring a person to click through.

On format: in a video, the disclosure should be in the video and not only in the description, and viewers are more likely to notice it when it appears in both audio and video. In a live stream it should be repeated periodically, so people who join partway still see it. It should be in the same language as the endorsement.

On wording: simple terms like advertisement, ad, or sponsored work, and so does a plain thank-you naming a free product where it is placed so it is hard to miss. The brochure says not to bury a disclosure in a block of hashtags or links, and to avoid vague shorthand or stand-alone words that do not say what happened.

It also tells influencers not to rely solely on a platform's built-in disclosure tool, while allowing that using it in addition to their own is sensible.

Disclosure does not license the claim

This is the part that matters most on a health page, and it is easy to lose behind the disclosure conversation.

The staff brochure states three limits in plain words. You cannot talk about your experience with a product you have not tried. If you were paid to talk about a product and thought it was terrible, you cannot say it is terrific. And you cannot make up claims about a product that would require proof the advertiser does not have — such as scientific proof that a product can treat a health condition.

The Guides put the same limit in legal terms. Endorsements must reflect the honest opinions, findings, beliefs or experience of the endorser, and may not convey a representation that would be deceptive if the advertiser made it directly.

Endorsers carry their own exposure. Someone who is not an expert may be liable for misleading or unsubstantiated claims about a product's performance. That includes claims inconsistent with their own experience, and claims that go beyond it and were never made or approved by the advertiser.

The Guides illustrate this with an influencer who believes a lotion cleared their own skin condition and tells followers it cures that condition. Having gone beyond personal experience without a reasonable basis, the influencer is subject to liability, and the advertiser is liable too if it lacked substantiation for the implied claim.

So a post can be perfectly labeled as an advertisement and still be a problem, because the label answers a different question than the claim does.

The brand's job, and the insider case

Liability does not stop at the person holding the camera.

Advertisers are subject to liability for misleading or unsubstantiated statements made through endorsements and for failing to disclose unexpected material connections. The Guides say advertisers should provide guidance to endorsers, monitor their compliance, and take action sufficient to remedy and prevent non-compliance — while stating that this is not a safe harbor.

Intermediaries are named too. Agencies, public relations firms, review brokers and reputation management companies may be liable for their roles here. That covers creating or disseminating endorsements that lack necessary disclosures, and hiring and directing endorsers who fail to make them.

Employees of the seller are a separate case with its own rule. There is a rule for insiders. Under the Rule on the Use of Consumer Reviews and Testimonials, an officer or manager who writes a review or testimonial about their own business must clearly and conspicuously disclose that relationship. For a testimonial, the duty lifts where the relationship is already clear to the audience.

It also reaches the business that spreads such a testimonial by its own officers, managers, employees or agents where the relationship is not otherwise clear and the business knew or should have known about it.

What to look for in a feed

Three habits cover most of it.

Look for the disclosure before you look for the claim. If it is in the caption's first line, in the video itself, or spoken aloud, someone took the placement rules seriously. If you had to expand the caption, it was not unavoidable.

Read what the disclosure actually says. Free product and paid partnership are different facts, and so are commission on sales and equity in the company. The Guides ask for enough to evaluate the significance, which means vague words do less than plain ones.

Then ignore the disclosure and read the claim. Ask whether the person is describing what happened to them or asserting what a product does to people. The second one needs evidence that a caption cannot supply.