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New FTC Guidance for Social Influencers Disclosures 101

New FTC Guidance for Social Influencers Disclosures 101

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While the Food and Drug Administration (FDA) is the primary regulatory authority for food, dietary supplements, cosmetics, tobacco products, and other related products, the Federal Trade Commission (FTC) regulates advertising and promotion of these products.  The FTC is charged with ensuring that all material claims are truthful and non-misleading, and are supported by competent and reliable scientific evidence. Recently, in response to rapidly developing markets, FTC enforcement has expanded to dietary supplements containing cannabidiol CBD, as well as nicotine-containing e-liquids, both of which tend to be marketed heavily on social media.

On November 5, the FTC released a short guidance document, “Disclosures 101 for Social Media Influencers”, providing direction to social media influencers—and the companies that use them for marketing—on disclosures that are needed and how to effectively disclose that a social media post is sponsored. The guidance recommends making it obvious that a financial relationship exists between the influencer and the brand he or she is promoting, through clear and conspicuous placement of the disclosure in simple language. The guidance also advises that influencers cannot make up claims (e.g., health-related claims) about a product that would require substantiation (e.g., scientific studies) that the advertiser doesn’t have.

In addition, advertisers and influencers alike should be aware of FTC scrutiny of claims relating to CBD products.  As recently as October 23, the FTC sent a warning letter to a company for the online marketing and sale of unapproved drug products containing CBD with unsubstantiated claims that the products treat a variety of conditions, including attention-deficit/hyperactivity disorder (ADHD), Parkinson’s, and Alzheimer’s disease. As a reminder, while the FDA has not approved any CBD products other than one prescription human drug product to treat rare, severe forms of epilepsy, the FDA has stated its commitment to evaluating potential regulatory pathways for CBD products to be lawfully marketed. We will continue to report on developments that impact the production, marketing, and sale of CBD in FDA-regulated products.

© 2019 Keller and Heckman LLP






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