If celebrities like Michelle Obama and Vin Diesel don’t sell you soap, they should. That’s because of influencer marketing rules launched by the FTC in 2013. Consumers were concerned about too much paid media for too little compensation. Now the FTC is being given two years to review those rules, and fines for brand violations will rise from $16,000 to $32,000. However, the FTC will stop short of re-emphasizing whether paid media must be free of any appearance fee.
FTC Chairwoman Maureen Ohlhausen wrote today that “Unless action is taken, many consumers may continue to believe that marketers can freely pay influencers for speaking engagements and marketing services…It is essential that we understand whether our current influencer marketing rules can adequately keep pace with technological innovations that allow more individuals to participate in market research and to market products and services, including those that may receive free marketing services.”
While it’s not immediately clear what brands or influencers will likely be affected, it does highlight the fact that the FTC is reconsidering the current set of rules, and not just destroying them. When the FTC doesn’t act, this creates gaping holes for the general public that could be exploited by unscrupulous marketers.
Instead of talking about the fact that it’s difficult to enforce its penalties, Ohlhausen concludes “I can assure you that as we examine the law, we will be considering many ways to strengthen our enforcement of influencer marketing rules. As we did in adopting our rules in 2013, we will be seeking public comment. And we will be working closely with Facebook, YouTube, Pinterest, and Instagram as we consider any necessary improvements.”
Google wants the FTC to ease up on its bedfellows and peer-reviews, and the agency has effectively been turning down other help. The FTC gave Facebook a brief window to fix its privacy screw-ups, but even that paled in comparison to the company’s concessions on Instagram or its contract with Yahoo for under-the-table crawling on its search data.
But today’s decision from the FTC shows it’s taking another look at how it decides what is or isn’t considered “market research” and a violation of the spirit of the law. Such market research can include going from billboard to billboard, interviewing people on the street, and even selecting respondents and even choosing which ones to talk to. Unsuspecting civilians would never agree to show up with agency staff for this screening.
The FTC may now be weighing what role Twitter, Instagram, and others may play in figuring out which consumers ought to get paid to consume, and which don’t. For example, today’s FTC action cites companies that shared information with agency staff and influencers through social media. Maybe that could include the content that content creators share on their channels or the hashtags they use. But Twitter hasn’t allowed anyone but its own accounts to access its audience.
As I noted earlier this week, the gap between what today’s FTC action treats as market research and what Facebook and Twitter are letting brands do could be wide. This process could push the FTC to get it right.