There are two types of sponcon: deceptive and aspirational. Each type comes with its own considerations, problems, and enforcement mechanisms. So today we’re discussing if sponcon is legal. Are there loopholes? Must you disclose every material exchange? Can you hide disclosures in hashtags? Let’s dive into the legalities of sponcon.
What Is the Difference Between Deceptive and Aspirational SponCon?
Deceptive sponcon is when influencers underhandedly conceal sponsorships in an attempt to generate profits. Aspirational sponcon is when up-and-coming influencers create fake ads to show off their promotional skills and attract brands.
The FTC Is Responsible for Busting Deceptive SponCon
Since the Federal Trade Commission is tasked with policing “unfair and deceptive marketing” practices, it’s most concerned with cutting down on sponcon posts that manipulate consumers. Aspirational sponcon, on the other hand, is a headache for businesses because fake ads have the power to taint brands.
Think about it: would Talbots — the ultimate apple-pie-mom-wear retailer — want Post “Diamond Fangs” Malone to be out in the streets pretending like he represents them? Probably not. Same goes for all companies. Brands prefer to vet endorsers and pick ones that perfectly fit with their finely crafted messaging.
Influencers and Social Media Marketers MUST Make Conspicuous Disclosures for Compensated Posts
Influencers who market on social media must disclose material relationships, which include:
- Personal relationships
- Familial relationships
- Professional relationships
- Financial relationships
- Brand relationships
Disclosures cannot be inconspicuous — so don’t blend text into the background or size-down fonts to infinitesimal. If you’re making a video, the FTC recommends making voice disclaimers throughout the shoot, especially at the beginning, middle, and end.
Authorities also require all disclosures to be in simple, clear language — and not buried under barely-there links. Again, the idea is to make sure consumers are given all the information they need to make a reasonable decision.
Influencer Law: Disclosure Hashtags
When promoting on social media, you must use at least one conspicuous disclosure hashtag. Acceptable options include:
- #advertisement
- #ad
- #sponsored
Things like #thanks or #collab don’t cut it. Burying disclosures in a hashtag salad won’t work either.
Influencer Law: What Counts as “Compensated”?
According to the letter of the law, if someone pays you — whether in cash, crypto, product, or some other in-kind compensation — to promote a product or service, then you must disclose this fact. For example, if someone pays you in product, that is a material relationship that must be disclosed.
Aspirational SponCon: Is It Legal?
The flip side of the sponcon coin is“aspirational sponcon.” A tool used by up-and-coming influencers in search of sponsors, aspirational sponcon spots are fake ads produced by personalities to highlight their promotional chops and signal partnership interest. For example, a new mommy-blogger influencer may highlight Tide laundry detergent in a video to signal her desire to work with the company.
At first thought you may think: brands must love it. After all, who doesn’t love free advertising! But the opposite is more often true. Corporations invest millions of dollars every year into crafting, maintaining, and protecting their messages. So when an inexperienced influencer comes along and creates their own advertisement, it has the power to tarnish the company’s brand. Not only may the influencer fall outside the brand’s target demographic, but they may offer up the wrong vibe and ethos.
How to Spot Aspirational SponCon
You can usually differentiate aspirational sponcon from actual sponsorship spots by whether or not the person makes a disclaimer. If there is a disclosure, the influencer likely has a real relationship with the promoted brand. If an influencer doesn’t make a disclosure, they’re likely searching for endorsement partnerships, because the law doesn’t require marketers to tell people that they don’t have relationships with featured brands.
Aspirational SponCon Can Land You in Legal Trouble
Corporations fiercely protect marketing materials and have in-house legal teams that bring the pain against anyone who violates intellectual property rights. So be careful out there aspiring influencers! At first thought, it may seem like a good idea to fake sponsorship spots to attract attention. But it could attract legal troubles instead.
Connect with an Influencer Lawyer
The Kelly Law Firm works with influencers and social media marketers on all types of legal matters, from contract negotiations to FTC defense. If you want advice on a legal matter or need an agreement drawn up, get in touch today.
