Influencer Advocacy Under Scrutiny: Legal Compliance in the Context of the Soda and SNAP Benefits Campaigns
Background on SNAP and Proposed Changes
SNAP is a government assistance program that disbursed over $100 billion in benefits during fiscal year 2023. A significant portion of these benefits is spent on unhealthy foods, including an estimated several billion on sugary drinks, such as soda, which provide minimal nutritional value. Secretary Kennedy has been vocal about his intention to restrict the purchase of such items using SNAP benefits, citing public health concerns. In response, large soda companies have been fighting back against what would be a potentially significant hit to their bottom lines.
The Role of Influencers in Advocacy Campaigns
Influencers have become increasingly influential in shaping public opinion on various issues, including political and health-related matters. Their involvement in advocacy campaigns can be effective, but it also raises questions about transparency and compliance with regulatory guidelines that govern influencer marketing law.
FTC Disclosure Requirements
The Federal Trade Commission (FTC) mandates that influencers clearly disclose any material connections with brands or organizations when promoting products or services. This includes financial relationships, such as payments or gifts, that could influence their endorsements. The FTC guidelines emphasize that disclosures must be “clear and conspicuous” to avoid misleading consumers.
Application of FTC Guidelines to Political or Non-Profit Campaigns
While the FTC primarily focuses on commercial endorsements, the line between commercial and non-commercial advocacy can be blurry. In cases where influencers are paid to promote specific viewpoints or policies, such as opposing nutritional guidelines for SNAP benefits, the question arises as to whether these activities fall under FTC disclosure requirements.
- Commercial vs. Non-Commercial Content: If the campaign is funded by a commercial entity (e.g., an influencer marketing company) and aims to influence consumer behavior or policy, it may be subject to FTC guidelines, and the FTC has taken action for certain advocacy campaigns focused on product consumption in the past. However, if the campaign is purely political or non-profit without a direct commercial interest, it might not be directly regulated by the FTC.
- Material Connection: The FTC requires disclosure of any material connection that could affect the credibility of the endorsement. If influencers are paid to advocate for a product or service, the rules are clear-cut. In contrast, where the promotion is of a specific policy stance, while this could be considered a material connection because the campaign is political or commercial in nature, it is in a gray area.
Challenges and Implications
The lack of clear disclosures in the influencers’ posts raises concerns about transparency overall. If these activities are deemed to have a commercial aspect or influence consumer behavior, they could be subject to FTC regulations. However, the absence of specific regulations for influencer endorsements in political campaigns from the Federal Election Commission (FEC) and even more so in the regulatory vacuum for general advocacy campaigns creates a legal gray area.
Takeaways
The recent discussion highlights the need for clarity and transparency in influencer marketing, particularly when it involves advocacy campaigns with potential societal or political implications. As regulatory bodies continue to evolve their guidelines, influencers, agencies, advocacy groups, and brands must ensure compliance to maintain credibility and reputation and avoid legal repercussions. The intersection of commercial and political advocacy will likely remain a complex issue, requiring ongoing scrutiny and potential legislative action to clarify the boundaries of FTC and FEC regulations.
