To Win Friends and Influence People: Regulation and Enforcement of Influencer Marketing After Ten Years of the Endorsement Guides
For the last ten years, social media influencer marketing has been regulated by the Federal Trade Commission (FTC) under the FTC’s Section 5 “unfair practices” authority, guided by the Endorsement Guides, a “best practices” document published by the FTC. This is a fairly “light” regulatory scheme where violators typically enter no-money, no-fault consent decrees and generally undertake to do a better job following the Endorsement Guides in the future. During this time, the practice has flourished, and companies are spending significant portions of their marketing budgets on social media influencer advertising. Recently, the FTC has submitted proposals for increased enforcement and penalties in this space based on a belief that misinformation is plaguing the internet. This Article reviews the history of influencer marketing and examines the current regulatory regime. This Article contends that the current regime, while not perfect, is preferable to a strict rule-based approach with substantial penalties due to the evolving nature of social media and consumer perception in this area.
Craig C. Carpenter
Mark Bonin II