NAD explained that the FTC has cautioned companies against relying on social media platforms’ disclosure tools and has stated that those tools should be used in conjunction with other disclosures. Although the post did include “#ad” and “#sponsored,” NAD noted that the hashtags appear on the fourth line of the post’s description and that consumers wouldn’t see them unless they clicked to expand the post.

NAD recommended that Fenty Skin require Ms. Fatale to ​“modify the challenged post to include a clear and conspicuous material connection disclosure in the video demonstration itself.” This is consistent with guidance the FTC provided in warning letters to influencers last year in which staff suggested that the influencers superimpose a disclosure in ​“much larger text over the videos.”

As part of the same inquiry, NAD found that another influencer – Sarah Novio – had posted a video about the product on her Instagram and TikTok accounts. Ms. Novio wasn’t paid for the posts, but she did receive the product for free. Although she included a ​“gifted” disclosure on TikTok, she neglected to do so on Instagram, and when Fenty Skin re-posted the video on their account, they didn’t include any disclosure.

During the course of the inquiry, Fenty Skin advised NAD that it asked Ms. Novio to update her Instagram post to include a clear disclosure that she had received the product for free. In addition, Fenty Skin removed the post from its own Instagram page and promised NAD that it would only re-post it if and when Ms. Novio adds the disclosure.

When it comes to applying makeup, you can go for a subtle barely-there look or you can go for something more bold. We won’t judge. But when it comes to influencer disclosures, the barely-there look isn’t going to be enough. FTC and NAD want those to bold and prominent. Yes, some might call that garish and unattractive but, ironically, that will help you avoid unwanted attention.

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