Is Your Instagram Post Illegal? Influencer Legalities

Is Your Instagram Post Illegal? Influencer Legalities

Are You Familiar with the FTC’s Guide’s on Social Media Marketing?

Your Instagram Post May Be Illegal and You Don’t Even Know It

(I am not an attorney and this is not legal advice. You can read my full Disclosure and Privacy Statement here.)

Is your blog/Instagram post Illegal? Of course you’re like who me? No way! I’m doing exactly what everyone else is doing’ but what if what everyone else is doing is wrong? Following the masses won’t keep you safe.

Are You Familiar with the FTC's Guide's on Social Media Marketing? Your Instagram Post May Be Illegal and You Don't Even Know It -

You did it. You gained a following on Instagram and suddenly companies are reaching out to you left and right. Congratulations, but what comes next? Did you know that if you don’t properly disclose your affiliation with companies your Instagram post could be considered illegal and you’re held reliable?

Yeah, no big deal. (*insert major freak out moment here*)

I recently have been hearing lots of talk around the confusion of how/when to use #ad and #sponsored and how people may not be properly disclosing their connections with companies and unintentionally misleading people, so I set out on a quest to better understand some of the legalities of influencer marketing.

Instagram is hot right now, but I probably don’t need to tell you that. It’s currently the fastest growing social media network and everyone wants a piece of the pie.

The new rising trend on Instagram is influencer marketing; what exactly is that? Glad you asked.

Being an influencer is simple, it just means you have an audience (large or small), and you help endorse products and companies. Celebrities have been doing social media marketing for eons, but thanks to Instagram and the potential for Insta-fame, your average Joe can now be an influencer too.

But being an influencer does come with responsibility.

A few months ago the FTC began reviewing Instagram posts of popular celebrities and athletes to see if their content held up with FTC regulations; for some they didn’t.

I’ve already talked about the power of word of mouth advertising and why you’re worth getting paid to post on Instagram, but reading a recent article by the FTC really put a new spin on things. Consider this;

We meet in the grocery store, in front of an aisle of expensive, organic, none GMO gummies (because you know they’re all the rage right now). As you reach for a box of generic, dye-filled, sugar loaded, smiley face gummies I stop you with;

“Your kids like fruit snacks?” You reply to the affirmative. “Oh! Well then you should totally try these! They’re absolutely delicious, organic, have NO added sugar, and are made with 100% really fruit and veggies! Isn’t that amazing!? My kids love them and would eat them allllllll day long if I let them. You should totally give them a try and see what you think!”

I hand you the box of $7.99 gummies (for 6 bags no less) and wave as I walk away. You stand there conflicted. They are three times the price of your regular gummies and probably won’t last until dinner, but, I really seemed to like them and they are a healthier option, I mean it can’t hurt to try them once, right? So into the cart they go.

Reviewing this encounter, of course we look at it and say, ‘no harm done’. But, would it have made a difference if I had let you know on the front end that we had 10 boxes shipped to our door for free, not only that, but I was paid to endorse them on social media? Yes, I think it would.

A lot of times when making a post, I don’t think we realize the weight that our endorsements carry. Even just making an Instagram post of an item and not saying anything about it is still a positive reflection of that product. You’re putting your stamp of approval on it by having it in your picture.

So, as far as legalities go, how does this translate to the small fish like me and you?

Honestly, I think you could continue to post however you want and get away with it. I doubt the FTC will be breathing down my neck anytime soon, but, that doesn’t mean I’m not going to do my absolute best to disclose my partnerships properly; to keep me and the companies I’m working with out of potential trouble.

So here is what this whole thing boils down to; disclose all affiliations properly. If there is one thing you take away from this whole ordeal, let it be this point.

How do we do that? Read on friend for 10 Tips to Proper Influencer Marketing Disclosure

  1. The “ad” hashtag is supposed to come before the ‘more’ on Instagram. Yikes. This is a really hard one for me! I want to lead in with my opening statement and get readers interested, not turn them off with a spammy “ad” disclosure. But I also want to do things the right way and let my readers know that they’re viewing an ad on my Instagram post so I don’t mislead them in anyway. (Actually, before doing all this research I hadn’t thought of it like that. It is never my intention to mislead anyone, as I’m sure it’s not yours either, but I didn’t realize how I could unintentionally be abusing the trust of my audience by not notifying them of my partnership with a company more obviously.)
  2. Think of it from your followers standpoint; is it obvious that you are working in partnership with the company you are endorsing in your Instagram post? If not you need to change something.
  3. You have to tell the truth. The FTC demands Truth in Advertising which I absolutely agree with! I would be so mad to know someone put their stamp of approval on a company they didn’t like; and now I know you can get in a lot of trouble for purposely misleading people about a product.
  4. Always disclose and never work with companies that ask you not to! It is illegal not to disclose affiliate marketing or any type of influencer marketing, so if a company asks you not to disclose your relationship this should be a red flag for you that they may be up to something shady.
  5. Likewise, if you’re working with a small company, they may not know you’re required by law to disclose, so always let them know! I don’t want companies I’m working with to be surprised when I post {ad} or #ad in my caption so I always make sure to give them a heads up as to what they can expect; so far it had never been a problem (and hopefully never will be!).
  6. Make it simple, make it plain. If you’re writing a blog post about an event or product just make the simple statement of “I received X for free yada yada yada” or however you’d like to word it. No need to get fancy or be nervous about it, just make sure you don’t hide the fact from your readers.
  7. Again, don’t hide it! The FTC has made it very clear that hashtags like #sp or #spon (for sponsored) are not acceptable. According to this article by “#ad is okay if it’s at the beginning of the post”.
  8. That also means you shouldn’t add your hashtag disclosure in a whole string of other hashtags where it could be missed. It has to be obvious. If a reader has to play ‘eye spy’ to find your hashtag you’re doing it wrong.
  9. The FTC states that the “disclosure must be in close proximity to the claim“, so that means you shouldn’t mention how much the product has been making a difference in your life, ramble on for another 20 sentences about your kids, and then add #ad at the end of it. Technically this would not be an appropriate disclosure as it’s too far away from the claim and could potentially be missed. In short; you need to place the disclosure next to the “claim”.
  10. Use a disclosure in every ad. Working with a company on more than one post? Yep, you’ve got to disclose in each Instagram post individually. A blanket statement is not enough as a reader may have missed the original Instagram post with the information and would never know you’re working in affiliation.

Bottom line is be as transparent as possible, never try to hide, and always disclose.

I should be noted that if you paid for the product, you have nothing to disclose, and you’re free to use it however you would like.

Technically I have to disclose this whole blog post, because even though it has nothing to do with influencer marketing, it has to be said that I am not an expert on this subject and this is not legal advice. Have I said that already? Good, just thought I’d mention it again.

This isn’t light stuff people, and it could get you in very serious trouble if you were ever reported.

Of course you’re sitting here thinking, “this would never happen to me, they’d never come after me, I’m too small”, and you’re right, it probably never will. But since Instagram is growing so quickly right now and influencer marketing is such a hot topic, there is potential that social media marketing will be more closely monitored soon.

Many are already calling for more concrete answers from the FTC on Instagram influencer guidelines and just better social media marketing guidelines in general. And with better answers always comes the potential for things to be scrutinized more seriously.

I for one would like to know I have my ducks all in a row before the inevitable crack down.

For more tips and tricks on Influencer marketing make sure you follow me on Instagram and subscribe to my email list to receive instant access to my FREE resource guide packed full of information on how to start making money on Instagram now. Oh! And don’t forget to pin this article, chances are if you found it helpful, others will too!

From one Influencer to another, cheers!


The Instagram Grey Zone:

Now here’s the biggest issue I’ve run up against that I can’t seem to find a verified answer to; if you receive free product from a company in exchange for an Instagram post, after you’ve fulfilled the contract (i.e. made your post) do you still have to disclose if that item shows up in photos in the future or you want to talk about it later on down the road?

Here are the two arguments I’ve found and both make sense;

Yes. If you got the product for free and want to talk about it or review it further down the line in an Instagram post you still have to disclose because people may not have seen the original disclosure.

No. Because if a company paid you cash for a project and you went out and bought a dress with that cash you wouldn’t disclose that the dress was “payment” for working with said company.

Ugh. Both make sense to me and I can see and argument for either.

If you have any concrete evidence on how this particular situation should be handled, please make sure to let us all know in the comments below! (I have sent an email to the FTC, but I got a general response and was told to go read the guides which I’d already read and din’t answer the question so….?)

Are You Familiar with the FTC's Guide's on Social Media Marketing? Your Instagram Post May Be Illegal and You Don't Even Know It -


9 thoughts on “Is Your Instagram Post Illegal? Influencer Legalities

  1. Wow! I had no idea #ad had to be before the “more” section! That definitely adds a little ingenuity on the influencer’s part. I’ve never done a sponsored IG post, but it’s good to know for the future.s

    1. Yes it does! I was worried about it seeming “spammy” to put ad first, but as a viewer I would much rather be alerted to the fact that the caption I’m about to read is an ad then find out after the fact or never know at all!

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