In an Instagram story Kim Kardashian posted this week, she knelt to take a mirror selfie while proudly holding a package of Flat Tummy Tea (a tea cleanse that promises to increase your metabolism and energy while flattening your tummy). “My go-to this summer,” she wrote of the product. The post was clearly an advertisement for the brand, but nowhere on the story did Kim write, “#ad,” “#sponsored,” or “#spon.” Nowhere did she make it clear that she was likely being paid to post that image.
A few days later, Kim’s sister Kourtney Kardashian posted a similar mirror selfie to Instagram, also while holding packets of Flat Tummy Tea. Her caption, though, differed from Kim’s: “#ad Summer vibes on @flattummytea,” she wrote; clearly signaling to followers that the post was part of a contracted deal with the company.
The discrepancy between the two posts — labeling something as an ad, or not — might not matter much to the Kardashians, but it does matter to other Instagrammers. The Federal Trade Commission (FTC) is paying close attention and making sure ads posted on social pages are appropriately labeled. But when posts made by celebrity influencers are not held to the same FTC standards, it causes confusion for all. Smaller scale influencers in particular, who are trying to get skin in the game, run into confusion with respect to how to avoid legal issues on their own pages. Particularly when someone like Kim seemingly faces no penalty for posting a Flat Tummy Tea ad without the appropriate hashtag.
A post shared by Kourtney Kardashian (@kourtneykardash) on Jun 21, 2017 at 4:00pm PDT
The FTC requires social media advertisements to be clearly labeled, stating that “material connections” between influencers and brands should be “clearly and conspicuously disclosed.” This is so followers know whether or not what they’re seeing is an advertisement.
The rules surrounding paid partnerships are still nebulous though, and all the ambiguity leaves smaller influencers — the non-Kim and Kourtneys of the world — a little confused about how to disclose promoted products on their pages.
“From the beginning, it’s been a murky topic,” says 24-year-old Erin Ann Cullen who moonlights as an influencer when she’s not working her e-commerce day job. Cullen has worked with roughly 40 brands over the last two years to promote products to her 2,400 or so followers.
I am humbled that @MadeWithCode nominated me as a modern day female superhero! In partnership with @WonderWomanFilm, I was asked to share my superpower with my Instagram community. I believe my superpower is enthusiastic encouragement. I aim to be a person who constantly lifts others up, especially women & members of the LGBTQ+ community. I seek to positively affirm individuals who bravely utilize their voice in these difficult times, inspire others with their unique gifts, & create beauty in different forms. Share YOUR superpower with #MadeWithCode & tag me so I can celebrate your talents too! ????⚡️????????????⚡️???? PS – I shared this photo specifically because I always feel like Wonder Woman in a pantsuit. Also, I wore this rainbow floral set to both @NYFW & the D.C. @WomensMarch. Finally, this photo only exists because my dear female friends helped me that day; @SMLancet rose early in the morning to braid my hair for Fashion Week & @LakshSarkar (a super talented illustrator who everyone should follow!) snapped this photo of me smiling at a model who had just SLAYED on the runway. Women supporting women is my greatest joy & greatest source of power. ???????????? #STYLESILIKE #WONDERWOMANFILM #MADEWITHCODE
A post shared by ERIN ANN CULLEN | STYLESILIKE (@erinanncullen) on Jun 4, 2017 at 8:27pm PDT
“It’s always a concern in the back of my mind. I think most influencers make an effort to follow the rules, but it’s hard to know what the rules even are and if we’re following them correctly. And I make it a priority to tag brands and utilize hashtags, but does the brand I’m working with even know what the FTC guidelines are?”
These guidelines are becoming of more importance as small influencers, or “micro-influencers,” generally a person with less than 100,000 followers, become more attractive to fashion houses and brands for their highly-engaged audiences who fully trust what they promote. HelloSociety, a social media marketing firm, tracks micro-influencer reach, and has found that influencers with fewer than 30,000 followers are incredibly powerful, despite reaching a smaller audience.
Research shows that micro-influencers deliver 60 percent higher campaign engagement rates than bigger fish, and they’re cost effective, being “6.7 times more efficient per engagement” than influencers with larger followings, meaning their followers comment and like more frequently. That often translates to campaign success and sales for the brands involved. It only makes sense then that micro-influencers are desperate to know the rules of the road as they promote brands to their pages.
While micro-influencers remain confused about best practices, the FTC is trying to straighten things out by going right to the top. In April, the FTC sent 90 Instagram influencers and brands letters reminding them to abide by rules requiring them to disclose paid advertisements on the platform. This was done after Public Citizen, a non-profit advocacy group, lobbied the FTC to examine the matter. Letters were sent to brands and representatives for celebrities like Sean “Diddy” Combs, Sofia Vergara, Naomi Campbell, and other A-listers. The hope, we imagine, is that these people would be able to lead by example; of course in addition to being more transparent with their followers.
According to the FTC, the letters mark the first time the organization has reached out directly to “educate social media influencers.” (An FTC spokesperson declined to comment further on the matter, and declined to say whether it was planning on taking punitive action against influencers.)
Legally, nothing’s come of the letters yet but it shows the FTC is serious, and many influencers are relieved that guidelines are set to become more clear. Instagram proactively rolled out a feature to make it easier for influencers to disclose paid posts. The feature allows them to indicate a post is a “paid partnership” along the top of the photo, where the location tag would normally be. It’s not yet available for smaller influencers, though.
While Instagram did not respond to request for comment for this story, The Fashion Law thinks the new changes at Instagram are a way for the platform to cover itself in case the FTC does decide to take punitive action.
“I am not under the impression that the FTC will be the most direct point of enforcement of the use of the new Instagram tags,” Julie Zerbo, founder of The Fashion Law, tells Yahoo Style. “I believe — from reading Instagram’s statements — that Instagram is hoping to step in and help to rectify the widespread problem of non-disclosure or improper disclosure on its platform. It is my belief that this is either because Instagram wants to try to avoid secondary liability.”
There’s no word yet on whether Instagram’s new feature satisfies FTC guidelines.
Regardless of whether celebrity influencers change their disclosure habits, Kyla Brennan, HelloSociety’s founder and chief executive, thinks small influencers should clearly mark their posts as advertisements if they want to keep their followers engaged.
Her theory about follower engagement is rooted in the results of an experiment that HelloSociety conducted about two years ago. The company tested whether labeling an Instagram post as “sponsored” or “ad” negatively impacts user engagement, which the company predicted. As it turns out, there was no drop off in engagement, Brennan says, except for when posts weren’t in line with the influencer’s message.
“This comes down to the core of the whole issue, which is asking whether a brand is a fit for you and your audience. Ask yourself, ‘Does it make sense on my page? Do my followers expect to see things like this on my feed? Do I do a good job of speaking to the partnership?’ You can have ‘#ad’ all over the post and it won’t effect engagement as long as you’re providing value to your audience.”
Most importantly, Brennan says, influencers, big or small, shouldn’t try to outsmart savvy consumers.
“Don’t pull the wool over your followers’ eyes, that’s when you see negative reactions.” And that’s a truth whether your following is as big as Kim Kardashian’s, or a number that’s slightly more manageable than 101 million.
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Alexandra Mondalek is a writer for Yahoo Style + Beauty. Follow her on Twitter @amondalek.