In addition to longstanding policies about not negotiating with terrorists and supporting Taiwan as an autonomous region, the United States government now also has an official stance about the placement of hashtags in sponsored posts on Instagram.
"Where there are multiple tags, hashtags, or links, readers may just skip over them, especially where they appear at the end of a long post," the Federal Trade Commission (FTC) states in a template letter addressed to online influencers that details guidelines for the legal disclosure of sponsored content on social media. "For example, consumers viewing posts in their Instagram streams on mobile devices typically see only the first three lines of a longer post unless they click 'more,' and many consumers may not click 'more.' Therefore, you should disclose any material connection above the 'more' button." The FTC also advises against using "#sp," "Thanks [Brand]" or "#partner," because they are not "sufficiently clear" indicators of a paid post.
The FTC first issued social media disclosure guidelines for influencers (aka "endorsers") back in 2013; the main thrust behind these parameters is that brands and endorsers need to let their audience know in a clear, conspicuous way if any posts were the result of some kind of material exchange, including money, free gifts or other perks. The public, the FTC says, has a right to know if they're being sold a clean, unbiased recommendation or an advertisement on their social feeds.
"Since 2014, the FTC has been actively enforcing promotional violations on all types of social media, from YouTube videos to tweets to Instagram posts," says Staci Zaretsky, editor at the legal site Above the Law (also owned by Fashionista's parent company, Breaking Media). "The FTC even holds its own Twitter chats about social media influencer disclosures to educate the public."
In that time, the influencer marketing space has grown exponentially; the data analysis agency L2 predicts it will be a $2 billion industry by 2019. However, some influencers and the brands that love them have struggled to abide by disclosure regulations. By April 2017, the FTC had taken to mailing a spate of 90 letters like the one excerpted above to marketers and social media heavyweights warning that they were in danger of legal repercussions if they didn't divulge their material connections. These warning shots were aimed at just a handful of Instagram's 800 million active users, but celebrities with clout can perhaps set compliance trends in addition to fashion ones. Kardashians and supermodels (some of whom allegedly received warning letters, according to a report in WWD) aren't the only people who benefit materially from having a big follower count, and they are certainly not alone in flouting legal guidelines.
Editors and writers at major fashion publications, many of whom have a following in the tens or hundreds of thousands, often receive the same gifts, press trips and dinners as full-time influencers, with the same expectation to share related content on their personal social channels. But, thanks in part to a fashion media system that is largely still built on antiquated best practices that predate social media, disclosures that should be obvious are often treated as though they exist in a gray area that is unique to those whose names appear on a magazine masthead.
For this story, Fashionista spoke with current and former editors and writers from different fashion and beauty publications to ask about their experience with personal content the FTC would consider to be an endorsement worthy of a disclosure clause. These sources are currently or were previously full-time employees; part-time contributing editors or contracted consultants may appear on a masthead, but aren't always bound by the same company guidelines. Cumulatively, their anecdotes suggest that unlike the care sales and marketing teams take to clearly delineate branded or sponsored content on the official feeds of magazines and editorial sites, there is not yet a regularly practiced or consistently enforced industry-wide standard within fashion media for ensuring that employees do the same on their personal feeds, despite FTC law.
To be clear, none of the sources for this story report instances of editors they knew to be consciously misrepresenting the nature of their posts, whether to hide additional income from their employers, avoid paying taxes or disguise a chummy relationship with fashion brands that might call into question journalistic impartiality. Most say fashion editors who don't disclose material exchanges don't understand why they need to do so.
“I think everybody's just trying to figure it out,” an editor at a major women's digital publication, who asked to remain anonymous, tells Fashionista. "Sometimes our industry can feel like one big game of bribery, with the events and the trips and the dinners and the breakfasts and the coffees and the free shit all the time. It's almost to the point where it's too much to even be disclosed."
Editor gifting, in particular, was the subject of a spate of stories recently published by Racked, who reported their staff received a whopping $95,000 worth of products for free from brands in just six months. As part of the series, dubbed The Swag Project, Racked examined how the long-held practice of sending editors gifts to cull favor has morphed into a de facto pay-for-play ecosystem with the rise of social media, largely accepted as the norm and inconsistently disclosed.
Racked made public their official ethics policy about receiving gifts. In a nutshell: sponsored content is clearly labeled as such, and if a Racked editor receives anything for free related to something the site publishes, it is noted. (For purposes of full disclosure, Fashionista's disclosure policy is the same.) When asked if a similar company standard regarding individual employees accepting payment or gifts in exchange for social media content exists, representatives from Hearst did not reply to multiple requests sent via email. A rep for Condé Nast asked who else would be involved in the story, then did not reply again. A rep for Super Deluxe, a video-based entertainment studio, declined to comment.
The lack of transparency about who is getting paid to do what likely also contributes to confusion — or suspicion and distrust. A recent post on the blog The Fashion Law suggested the diffusion of the recent Louis Vuitton x Jeff Koons collaboration among influencers on Instagram was the result of editor gifting. The story, published without a byline, did not specify why this may be the case, but when asked, the site's editor Julie Zerbo said she noticed the influencer Bryan Boy had disclosed that he had received his bag as a gift. Had others been given them for free? Louis Vuitton declined to comment for this story. Beyond Bryan Boy, and short of individually reaching out to every influencer who snapped a pic of their new bag, we can't know if we're seeing ads or a best-selling item or both.
The same could be said of the $1,500 Chanel glitter boots that were worn by a conspicuous number of editors during Paris Fashion Week this September. Chanel is known for extravagant influencer gifting — especially during the holidays, when colorblocked leather clutches, Cuba-themed Coco Chanel T-shirts and other pricey items are frequently distributed (some of which Fashionista staff has received gratis in years past). While these items have appeared in many an Instagram post, proper disclosure was included in very few.
The only journalistically sound assumption to be made from the lack of interest in participating in this story is that these companies simply did not wish to participate. But, employees report a wide spectrum of practices, suggesting a cohesive policy at their companies either doesn't exist or isn't actively disseminated internally. A recent hire at Condé Nast said social media guidelines for paid posts were not mentioned at all during his onboarding process; a veteran editor at Hearst said she knew to forward any requests she personally fielded regarding paid social media placement to her publication's sales and marketing teams to negotiate, as a practice she observed over time that would also funnel potential money from her pocket to her employers'.
Lauren Caruso, a former editor at Allure and StyleCaster with a personal Instagram following of over 26K, says that she began receiving requests from brands for personal content partnerships around 2014. At the same time, her employers were determining how to move their publications from a traditional ad-based revenue model into one that encompassed paid social posts and branded content. "The way that I handled it back then [at Allure] was to go to my boss and say, 'Hey, I have a small following, these people want to do some sponsored posts. What do you think?'" Caruso says. "Because I was working at Allure, which is a beauty magazine, I couldn't take on any paid sponsorships in the beauty realm, which was fair at the time. Anything else I just had to disclose to them and they could approve or deny."
Caruso believes that system, which she says she also implemented at her subsequent post at StyleCaster, wasn't perfect, but had potential to be mutually beneficial for both her and her employers. “A lot of the time it was frustrating, because there was no way to really explain to them that I [was] hoping for this to be a second salary and it has nothing to do with what I'm working on for Allure," she says. "Being in the digital space, it's really important that you recognize your editors as not only editors, but also possibly as an asset.” In other words, if brands like the results of spending money on an employee, they may eventually come to spend money with the employer, too.
Some publications are keenly aware of this. Marissa Smith, a freelance editor and stylist, is a former employee of NYLON Magazine. There, she says, editors were often leveraged to appeal to advertisers. "Our marketing team was selling editors as a part of branded content," she says. "We weren't compensated for doing those things, but we were having to do them. It wasn't a choice. It was just like, 'Oh yeah, we sold you. You're going to star in this branded content thing.'" While not explicitly mandated that this content live anywhere other than official NYLON feeds, Smith says it was implied that it would likely be shared on the editors' personal feeds, as well. (Smith has a personal Instagram following of over 16K.)
“There was definitely no written or verbal confirmation that I needed to do that,"she explains. "I think it was just something in the back of their head that they probably assumed I would, just because I'm proud of what I've done." A rep for NYLON did not, you guessed it, reply to verify or dispute this practice.
It would be in the brands' best interest to formalize these assumptions and monitor them as such. “Typically, the brand paying for the endorsement is liable,” Zaretsky says, noting that there may be increased action against individual influencers in the future, too. "At $10,000 a pop, fines for these types of violations are pretty weighty."
“Some brands are super clinical and rule-following about things, and others aren't," says the aforementioned anonymous digital editor. They recall that 2016 holiday gifts sent to editors from J.Crew and Madewell included notes encouraging full disclosure should recipients choose to post photos of the items they received for free. "Others are smaller brands, they're not working with as many influencers, they're not working with as big budgets and they kind of just pay things under the table," the editor adds. "It's a little bit fuzzier."
If the fear of a personal lawsuit is enough to make even the most laissez-faire influencer hyper-aware and suddenly articulate, it doesn't clear up the question of how perks, payment and gifts in exchange for posts can be reconciled with journalistic principles. The style teams at harder news publications like The New York Times and The Wall Street Journal typically do not accept free press trips or product, per company mandates, eliminating at least one source of social media-based conflicts of interest. But editors at softer publications (and some freelance writers), who consider themselves journalists, are not often held to the same standards by their higher-ups.
Fashion editors don't typically enjoy extravagant salaries despite living in exorbitantly expensive cities like New York, and a quick, paid Instagram post is a fairly easy way to earn some extra pocket money. Credibility is not necessarily only attainable for those who don't engage in paid content, but if they are paid by brands they cover, it is, quite reasonably, called into question. Even when payment is properly disclosed, the expectation that an editor can fairly review a collection or be an objective gatekeeper while also leaving open the possibility of receiving payment from the same people wouldn't hold water in other industries.
In their endorsement guidelines, the FTC notes: "The question you need to ask is whether knowing about that gift or incentive would affect the weight or credibility your readers give to your recommendation." Without clear guidance from employers and industry thought leaders, the imperative is on the individual to define what personal credibility looks like. Transparency is the law, but no one — including the FTC — can regulate integrity.
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