In March 2017, the Federal Trade Commission sent “educational” letters to 46 celebrities who it believed weren’t properly disclosing ads on Instagram. Since receiving the letters, all but one of these celebrities have continued to post ads that are not FTC-compliant, according to the advocacy group Public Citizen. Today, the group is sending a new letter to the FTC asking it to do something it’s never done before: crack down on individual celebrities — not just brands — posting shady Instagram ads.
"The only way to get people to follow the rules is enforcement action," Kristen Strader, campaign coordinator for Public Citizen’s Commercial Alert, told BuzzFeed News. "Without consequences, influencers and advertisers have no incentive to follow FTC policy and be honest with consumers."
The group also wants the FTC to conduct a broad investigation into the current state of influencer marketing, including working with Instagram to come up with a better solution than the new "paid partnership with..." feature.
It’s unclear if the FTC will take Public Citizen’s advice and open an investigation or any other enforcement actions. The agency has not commented on the letter.
Historically, the FTC has only ever gone after the brands and advertising agencies responsible for undisclosed social media ads, and has never filed lawsuits or pursued enforcement against individual people. In fact, it’s really rare for the FTC to do anything at all. Since 2011, the FTC has brought action only five times, and each time it was against a brand or advertiser — never an individual. Sending “educational” letters to celebrities was a completely new step.
Why the change? Perhaps it’s because the volume of deceptive influencer marketing on Instagram has increased a lot, and the government is finally dropping the hammer. As BuzzFeed News reported, a recent study showed that the majority of Instagram's 50 most popular celebrities has posted ads, and that 93% of those ads have not complied with FTC guidelines. Sending letters this spring indicated a different direction for the FTC: Instead of filing costly and time-consuming legal action once someone acts badly, it's telling people how to follow the rules, and encouraging popular influencers to set an example.
From May 1 to June 12, Public Citizen tracked the 46 celebrities who received the warning letters. In those six weeks, all but two of them (basketball player Allen Iverson and NFL player James Harrison) posted more ads. Most posted just a few ads, but some posted a shitload. Fashion blogger Rachel Parcell, model Tiona Fernan, and model/basketball pro Valentina Vignali each posted more than 30 undisclosed ads. Altogether 412 ads were posted, 79% of which were not properly disclosed.
One of the confusing things Rachel Parcell does is tagging brands in a photo. Are we to assume she is just letting fans know where she purchased an item? Or that she got it for free? Or that she was paid? We have no idea. And in this photo, it seems very possible that her vacation was also a gift — notice how she hashtags the hotel:
The types of ads in these posts aren’t as straightforward as someone holding up a bag of diet tea and forgetting to say “#ad”. Free gifts or long-term deals — like a celebrity creating their own product line for a brand — are particularly thorny. In the report on the undisclosed ads of the top 50 Instagrammers, these kinds of tangled relationships were the most common offenders.
For example, Scott Disick posted about riding with a private plane company called JetLux that often gives free rides to celebrities in exchange for them posting about it on Instagram. In the post, Disick simply says “thanks @jetluxlife.” What is the average person supposed to assume this means? That he enjoyed a flight he paid for himself, or that he got a free ride, or that he got a free ride AND payment for posting? It’s not clear at all, and that’s the problem.
Another of the celebrities on Public Citizen’s list is Zendaya, who also posted about JetLux. In what I can only imagine was an admirably passive aggressive move, Zendaya doesn’t show herself on a luxurious plane — rather, she’s huddled in her sweats on the couch, without even showing her face. Not exactly the kind of photo that JetLux probably expected when it gave a beautiful starlet a free ride.
Another confusing example cited in the letter to the FTC is Jennifer Lopez posting her outfit from the Met Gala. It’s hard for the average person to guess what’s going on here. Was she paid money by Valentino to post this? Was she just loaned a free outfit? Did she actually buy it herself and just want to tell people who the designer was? Is she a spokesperson for the fashion brand? Unless you work in fashion PR, you’re probably confused.
Some celebrities are posting more obvious ads where they do make some effort to say it's an ad — but these disclosures can still fail to meet FTC guidelines, which say that terms such as “partner” aren’t clear, and that the disclosure should be in the first three lines of the caption so that it doesn’t get cut off when you’re scrolling through your feed. For example, Real Housewives of Beverly Hills star and TV actress Lisa Rinna uses the hashtag #teamipartner” at the end of this post, but that doesn’t meet FTC standards. Public Citizen’s stance is that both Lisa Rinna and the diet drink company know the rules by now, and are just willfully ignoring them.
Only one person has actually properly disclosed 100% of her ads since receiving the FTC letter: Real Housewives of New Jersey star Caroline Manzo.
Caroline Manzo, we salute you.