Instagram and the #FreeLunch: FTC Guidelines on Social Media Endorsements

With Thanksgiving behind us and the holiday season in full swing, many of us will be dining out at local restaurants and picking up sumptuous desserts to bring to dinner parties.  Looking for restaurant and bakery suggestions? Look no further than Instagram.  A recent article in the Wall Street Journal, entitled “Food Instagrammers Turn Their Accounts Into Professions” highlights the success of three 19 year-old foodies who have attracted nearly 500,000 followers by posting enticing pictures of restaurant meals to their joint Instagram account. They, and others like them, often receive offers of free meals, paid public relations gigs, and other benefits from restaurants eager to see their delectable creations featured in social media. One restaurant group owner said it had begun inviting some Instagram users to meals or paying them to post photos.

The WSJ writer commented that “These Instagram entrepreneurs exist in a gray area of independence and promotion, editorial taste-making and public relations. Each account draws its own lines, which are rarely spelled out for followers.”  Gray? Not really.  In 2009, the Federal Trade Commission updated its Guides Concerning the Use of Endorsements and Testimonials in Advertising to help advertisers craft truthful and non-misleading marketing claims. The guides cover everything from traditional TV and print ads to then-cutting edge blogs and word-of-mouth marketing.  Instagram didn’t come on the scene until 2010, and since then much has changed in the world of social media. As a result, the FTC updated its informal publication called What People Are Asking, with FAQs that address real-world examples of promotional programs and advertising methods that are popular in social media today.  (For more information about theses FAQ’s, see Updated FTC Guidance on Endorsements and Testimonials in Social Media Advertising – Does Your Advertising Pass Muster?).  Despite the FTC’s never-ending quest to stay current, the bedrock principles of the Endorsement Guides have not changed – material connections between an endorser and a marketer that could affect how an endorsement is evaluated must be disclosed clearly and conspicuously.

This rule applies to small benefits and subtle endorsements. While marketers have questioned whether a $1 off coupon, a single free product or the opportunity to appear in an ad rises to the level of a connection that must be disclosed, the FTC advises that these types of benefits could affect the weight or credibility of an endorsement. Addressing the example of an Instagram photo, and exemplifying the adage that a picture is worth a thousand words, the FTC said that simply posting a picture of a product in social media could convey approval or endorsement. Accordingly, if an Instagrammer posting a photo of a restaurant meal received a benefit from the restaurant owner, such as a free meal — or perhaps a primetime reservation that would otherwise be impossible to get, or an Uber ride home after dinner– that connection should be disclosed. The disclosure requirement may not apply to someone who’s just posting a picture of their molten chocolate cake dessert for their friends and family to ogle.  But if you’ve got half a million Instagram followers, disclosure of the benefits received for your #FoodPorn photos is in order.