"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.''
It's up to the FTC to be more clear and consistent about their policies and enforcement, she said. A lot of influencers think they are following the rules, but in fact are falling short. More than 300,000 sponsored posts on Instagram in July used hashtags like #ad, #sponsored and #sp, up from about 120,000 a year earlier, according to Captiv8. Ostheimer said that’s usually fine -- unless it goes unnoticed.
“If consumers don’t read the words, then there is no effective disclosure,” Ostheimer said. “If you have seven other hashtags at the end of a tweet and it’s mixed up with all these other things, it’s easy for consumers to skip over that. The real test is, did consumers read it and comprehend it?”
Hashtags like #sp and #spon may not be fully understood, especially if they’re buried at the bottom of a post, he said. And any disclosure would be better at the beginning. When it comes to video, the FTC calls for disclosure to be said out loud or displayed on screen. It can get even more complicated on Snapchat, where there's not an obvious place to put a hashtag, and the videos are only a few seconds.
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.
“I don’t know if I even think of it as an ad,” Kushner said in an interview earlier this year. “They say, ‘I’ll do this piece and I’m going to do it my way.’ Whereas if I’m scrolling in my Facebook feed and I see a big thing from H&M or whatever, that is an ad.” She likened influencer content to product placement -- a basketball team wearing jerseys by Nike, for example.The FTC disagrees. A character on a sitcom drinking a Diet Pepsi isn’t giving their personal opinion about the soda, and the actor is playing a character. The agency says the basic test is: If a consumer knew an endorser was compensated in any way, would that alter the view of the endorsement? In the overwhelming majority of cases, the FTC says yes.
Nicola Foti, who makes comedy sketch videos and has about 388,000 followers on YouTube, said brand deals are how he makes the bulk of his income. But he said he’ll only do them “as long as it’s something that I like or something that supports a product I like.”