Send All the Influencers to Jail

Influencers have long operated as the Wild West of Instagram—drawing huge followings that bring in big bucks, with little oversight. But following complaints from advertising watchdogs, the Federal Trade Commission (FTC) may start to crack down on the industry’s more deceptive marketing practices.

Though influencers are required to disclose their relationship with advertisers, they often don’t. According to a report earlier this week from the tech site and research firm The Morning Consult, a study by the nonprofit organization Truth in Advertising analyzed 1,400 posts from about 20 influencers. They had all received letters from the FTC warning them to follow the agency’s standards, and not one of the posts followed FTC rules. The organization filed a complaint with the FTC in March, and has been meeting with the agency to discuss possible solutions.

As influencers begin to shill more frequently for pharmaceutical companies, the likelihood of regulation becomes higher, according to legal and business site The Fashion Law. Medical marketing is highly regulated, since the failure to disclose risks and relevant information can lead to devastating consequences for consumers. Think less Khloe Kardashian’s FitTea, and more celebrity-promoting psoriasis medication—a serious drug that requires specific (and scientific) language to accurately describe.

The Food and Drug Administration (FDA) has already gone after this kind of advertising, back in 2015 when Kim Kardashian posted a selfie with a prescription drug to counteract morning sickness without labeling the post as #sponcon. (In 2017, scientists pointed out “serious problems” in the study that they say led to the drug’s approval for sale.) The FDA responded to the post by sending a letter to the drug maker to stop working with Kim, a technique that the Fashion Law explains might be more common in the future:

Continued FDA action and initial FTC action in this arena may be ahead since the stakes are higher from a disclosure standpoint (drug marketing requires far more extensive disclosures, at least from an FDA standpoint than typical consumer goods), but also in terms of the products, themselves, which if not used properly stand to cause more harm to consumers than other products.

Another subset of influencer marketing that might grab the FTC’s attention is the highly-regulated space of vaping and other tobacco products. But with so many influencers (even more now that you can be one with just 1,000 flowers) posting every day on the Instagram platform, enforcing the FTC’s guidelines about proper disclosures is a gargantuan task. But if they manage to find the muscle, it could spell trouble for influencers who make their money parroting shady or harmful medical claims—until of course, they find something else to sell.