Ask the Expert: Social Media Disclosures

June/July 2024 Issue

Ask the Expert: Social Media Disclosures
By Toby Amidor, MS, RD, CDN, FAND
Today’s Dietitian
Vol. 26 No. 6 P. 6

Q: The Federal Trade Commission (FTC) recently updated its social media disclosures. Can you highlight the important changes RDs need to know?

A: The FTC Guides are designed to give insight into enforcement of the Federal Trade Commission Act, which generally prohibits deceptive advertising. In June 2023, the FTC updated its guidelines when endorsing products, focusing on social media.1 It’s important for RDs to stay abreast with the latest recommendations, especially if endorsing any products related to diet and nutrition. The following is an overview of the updated guidelines.

Why the Recent Update?
The FTC Guides that focus on the use of endorsements in advertising haven’t been updated since 2009. “The idea behind updating the guidelines was to provide greater transparency to consumers as to whether the content they’re consuming—social media posts, blogs, videos—is sponsored content,” according to Raymond L. Panneton, shareholder and attorney at Hendershot Cowart, PC.

Janet Helm, MS, RDN, Chicago-based founder of Food at the Helm, is the coauthor of the Academy of Nutrition & Dietetics practice paper on social media published in 2016.2 In just seven years, the landscape of social media has expanded dramatically to short- and long-form video. “Media dietitians could be inadvertently failing to adequately disclose in their sponsored social media posts because they’re unaware of the updated FTC guidelines. What worked a year ago is no longer sufficient,” Helm explains.

In November 2023, the FTC sent warning letters to a dozen RDs and two trade commissions.3 “Recent FTC violations have cited problems with clarity and context—the disclosure wasn’t clear and unmissable, and the posts didn’t reveal the sponsor behind the campaign,” Helm says. Panneton explains that if an RD doesn’t properly have “clear and conspicuous” disclosures on a post in any format (eg, video, static post, or reel), this could be seen as a misleading endorsement, and the person who posted the content could face civil penalties of up to $50,120 per
violation for failure to properly disclose.

Important Updates
There are three major updates and phrases that RDs should be aware of when working with brands online.

‘Endorser’ vs ‘Endorsement’
The updated definitions “seek to differentiate the ‘who’ (the endorser) from the ‘what’ (the endorsement). The guides govern both the ‘who’ and the ‘what’ in different ways when it comes to sponsored content,” Panneton says. Endorser is now defined as “The party whose opinions, beliefs, findings, or experience the message appears to reflect.”1 The updated definition of endorsement means “any advertising, marking, or promotional message for a product that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of any party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser.”1

‘Clear and Conspicuous’ Disclosure
According to FTC Guides, “clear and conspicuous” means that a disclosure is difficult to miss or easily noticeable and understandable by an ordinary consumer.

No matter how the message is being delivered—whether video, audio, text, etc—the disclosure must be delivered in the same way. For example, if an RD creates a sponsored post in video format, then the disclosure must be present in the video itself, and if the content is audio, then the disclosure must also be an audio disclosure. If the post contains both video and audio, then the disclosure must be made both on the video itself and audibly. It should be noted that even if the social media app provides a written “partnership” feature prominently at the top, it isn’t enough. You still must disclose the partnership verbally and/or in writing as required by the FTC.

‘Material Connections’
According to the FTC Guides, a “material connection” exists when there’s “a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement, and that connection isn’t reasonably expected by the audience, such connection must be disclosed clearly and conspicuously.”1 As such, if a significant minority of the audience doesn’t understand or expect the connection, then a clear and conspicuous disclosure must be made.

“Getting paid to review a food product, incorporate it into recipe, or reinforce a nutrition message as part of a campaign are all material connections. Yet, other material connections may be less obvious but still need disclosure, such as receiving free samples, touring a farm or factory, and enjoying a free meal—even if no money exchanged hands,” Helm explains.

In addition, Helm adds that if you have an ongoing partnership with a brand or company, you need to disclose that relationship even if you aren’t getting paid for that specific post (eg, #client). Furthermore, if you’re paid to attend an event then you also need to disclose by using, for example, #sponsoredevent as the first listed hashtag.

Recommendation for RDs
Helm provides the following tips for RDs to help make disclosures clear, complete, and provide context:

• place the disclosure at the top of the message;
• superimpose the disclosure over photos in picture platforms;
• include both audio and visual disclosures in videos at the start;
• use simple and clear language; and
• include the brand or company name of the sponsor.

In addition, Helm explains that disclosures cannot be buried at the end or in a long list of hashtags. Abbreviations (eg, #spon) or cryptic words without other explanation cannot be used either (eg, #partner). Helm also advises that when working with a brand or company, the FTC guidelines should be reinforced in the agreement with specific disclosure requirements identified. It’s the RDs responsibility to know and follow the up-to-date guidelines.

— Toby Amidor, MS, RD, CDN, FAND, is founder of Toby Amidor Nutrition (tobyamidornutrition.com) and a Wall Street Journal bestselling author. She’s written ten cookbooks, including Up Your Veggies: Flexitarian Recipes for the Entire Family, Diabetes Create Your Plate Meal Prep Cookbook: 100 Delicious Plate Method Recipes, and The Family Immunity Cookbook: 101 Easy Recipes to Boost Health. She’s also a nutrition expert for FoodNetwork.com and a contributor to U.S. News and other national outlets.

References
1. Guides concerning the use of endorsements and testimonials in advertising. Federal Trade Commission website. https://www.federalregister.gov/documents/2023/07/26/2023-14795/guides-concerning-the-use-of-endorsements-and-testimonials-in-advertising. Published July 26, 2023.

2. Helm J, Jones RM. Practice paper of the Academy of Nutrition and Dietetics: social media and the dietetics practitioner: opportunities, challenges, and best practices. J Acad Nutr Diet. 2016;116(11):1825-1835.

3. FTC warns two trade associations and a dozen influencers about social media posts promoting consumption of aspartame or sugar. Federal Trade Commission website. https://www.ftc.gov/news-events/news/press-releases/2023/11/ftc-warns-two-trade-associations-dozen-influencers-about-social-media-posts-promoting-consumption. Published Nov 15, 2023.