A new report from marketing firm Mediakix looked at posts from the Instagram accounts of the platform’s 50 most-followed celebrities over a period of one month. The report found that 93 percent of posts promoting a brand were not labeled in a way that made them compliant with the FTC guidelines.
BuzzFeed’s Katie Notopoulos sorted the full list of 152 non-compliant Instagram posts into four categories, determined by what type of sponsored content they were. Her analysis found that 49 percent were posts failing to disclose a long-term sponsorship agreement, such as Selena Gomez’s partnership with Coach. Sixteen percent failed to disclose what she termed a “big freebie” (a gift from a brand with a value of thousands of dollars). Twelve percent failed to disclose a “small freebie” (items like clothes, accessories, or beauty products). And 12 percent failed to label obvious pay-to-post ads, like one-time-only posts about diet teas, teeth whiteners, or meal kit boxes. (The types of things the Kardashians got in trouble for last year.) Eleven percent of the posts were deemed “unclear.”
This is an ongoing problem for the FTC, and for consumers. The regulatory organization announced plans to enforce stricter rules about social media posting in the summer of 2016, but celebrities largely seem to have continued doing whatever they want.
Many Instagram celebrities came under fire following this spring’s disastrous Fyre Festival, which was advertised extensively in expensive sponsored posts. Not all of these posts were labeled, and they were all posted by people who seemed to know almost nothing about the festival. Earlier that month, the FTC announced that it had sent letters to 90 brands and celebrities on Instagram, advising them to disclose their sponsored content more clearly and re-outlining the rules.
FTC guidelines say sponsored Instagram posts can be considered compliant in one of two ways: either a very clear caption using words like “sponsored by,” or the appending of a hashtag like #ad or #sponsored. The hashtags have to be “conspicuous,” meaning that they can’t be tacked onto the end of a long caption or series of hashtags, and they must appear without a viewer having to click “more.”
The only way this gets fuzzy is when celebs try to wriggle around the rules by using vaguer terms like “Thanks [brand]!,” or hashtags like #sp and #partner, which the FTC does not deem clear enough for the average Instagram user.
One major exception to the rules is promotion of artistic projects, which don’t have to be disclosed as an ad. Examples would be a film that the celebrity acted in, a magazine photoshoot they appeared in, or a new music album released by a friend. But those are easy to recognize, and don’t have the same deceptive effect on consumers.
The biggest offender is fashion. Mediakix found that 61 percent of sponsored posts were related to the fashion industry, which explains, somewhat, why the lines between paid and personal are so often blurred. Does wearing Reebok track pants automatically count as an ad? Well, no, but asking the question is a useful rhetorical device when you’re trying to get out of trouble. Tagging a favorite makeup artist in a post might be an ad or it might not be, and it’s easy to argue that it was just a good-faith hat tip.
The FTC’s guide for promoting brands on social media is extensive, and pretty much crystal clear. So, aside from the fact that they’ve yet to face any consequences, it doesn’t make a lot of sense that celebrities keep messing it up.
A representative for the FTC declined to comment for this story.
Correction: A previous version of this article stated that the FTC sent letters to 90 celebrities / influencers but the letters went to 45 brands and 45 celebrities / influencers.