The short version
- The trigger is a material connection the audience would not expect — payment, free product, commission, employment or a family relationship. There is no minimum value below which it stops mattering.
- An advertiser can be liable for endorsers who fail to disclose, and the FTC expects reasonable programmes to train and monitor the people you pay and direct.
- A platform's built-in disclosure tool may not be adequate on its own. The revised Endorsement Guides say so expressly.
- Affiliate links need disclosure the reader sees at the same time as the link — in the video and in the description, not only on a separate policy page.
The rule is about the connection, not the payment
The obligation is triggered by a material connection: any relationship between the endorser and the brand that the audience would not reasonably expect and that might affect how much weight they give the endorsement. Cash is the obvious case, but it is only one case. Free product, a commission on sales, a discount code that earns the poster money, employment, a share of the business, and family or personal relationships all qualify.
There is no de minimis threshold. A sample worth a few pounds creates a connection just as a paid campaign does, and "they were not obliged to post" does not remove it. This is the point most gifting programmes get wrong, because they are designed by people who think of the free product as a gift rather than as consideration.
The Endorsement Guides were revised in June 2023, and the revision broadened what counts as an endorsement to reach fake reviews, virtual influencers and even tags in social media posts. It also flagged advertising directed at children as an area of specific concern, and set out the potential liability of advertisers, endorsers and intermediaries more explicitly than the previous version did.
Why the merchant is on the hook for someone else's post
The FTC's position is direct: you may be liable if endorsements fail to disclose unexpected material connections, whether by disseminating advertisements without the necessary disclosures or by hiring and directing endorsers who then fail to make them. And the expectation goes further than drafting — the guidance says a company needs reasonable programmes in place to train and monitor the influencers it pays and directs.
Read those two sentences together and the compliance obligation stops being a contract clause and becomes an operational process. A brief that says "please add #ad" satisfies neither limb if nobody ever checks whether it happened.
What a monitoring programme looks like in practice
- Written disclosure instructions given at the start, with the exact wording and placement you expect — not a link to the FTC guides.
- A record that each affiliate or creator received and acknowledged them.
- Periodic review of live posts, sampled rather than exhaustive, with the review dated and recorded.
- A defined response when a post is non-compliant: notify, require a fix, and suspend the account if it recurs.
- A record of enforcement actually taken. An unenforced policy is evidence against you, not for you.
- The same treatment for employees posting about the product, who are frequently forgotten and are squarely covered.
Where a programme actually sits, once both halves are counted
Live posts reviewed
Disclosure clause in the affiliate terms
No clause
Clause drafted
Nobody checks
Exposed, and plainly so
Nothing to point at, and no contractual lever when a post is wrong.
The worst of the four
The paperwork shows you knew the standard. Nothing shows anyone applied it.
Sampled and recorded
You can see it, you cannot stop it
The problem is visible and there is no suspension or clawback behind the request.
What the guidance asks for
Instructions given, acknowledged, sampled, and enforced when a post fails.
What "clear and conspicuous" now means
The 2023 revision added a definition of clear and conspicuous, and made one point that changed a lot of programmes: a platform's built-in disclosure tool might not be an adequate disclosure by itself. The "paid partnership" banner is a useful signal, not a discharge of the obligation, because it can be small, easy to miss, rendered differently across devices, or absent entirely when the content is reshared.
How much of the disclosure obligation each placement actually does
On a separate policy page
Platform label or hashtag block
Plain words, ahead of the link
Spoken and written, beside each link
- Unavoidable. Not behind "more", not below the fold, not in the eleventh hashtag.
- In the same medium. A spoken claim needs a spoken disclosure; a video needs it on screen long enough to read, not for one frame.
- Before the endorsement lands, not appended after the recommendation has been made.
- In plain words. "Ad", "advertisement", "paid partnership with X" or "I earn a commission from these links" all work. "Sp", "collab", "thanks to X" and "#partner" do not.
- In the language of the audience. A disclosure in English on content aimed at a non-English-speaking market is not a disclosure.
Reviews are the other half, and they reach the merchant directly
The 2023 revision articulated a principle about consumer reviews that has nothing to do with influencers: procuring, suppressing, boosting, organising, publishing, upvoting, downvoting or editing reviews so as to distort what consumers think of a product. It also addressed incentivised reviews, reviews written by employees, and fake negative reviews of competitors.
These are merchant behaviours, not creator behaviours. Three common practices sit directly on the line.
| Practice | The problem | The compliant version |
|---|---|---|
| Free product in exchange for a review | The incentive is a material connection and has to be disclosed on the review itself | Ask for an honest review, require the disclosure, and never make it conditional on being positive |
| Publishing only the good reviews | Suppression distorts the overall impression even though every published review is genuine | Publish all reviews meeting a neutral, written policy applied consistently |
| Staff or agency posting reviews | An employee relationship is a material connection whether or not they were asked to post | A social media policy that requires the relationship to be stated in every post |
Affiliate links have a placement problem of their own
Affiliate content is usually longer, and the link often sits a long way from the disclosure. The FTC's guidance for creators is that the affiliate relationship should be disclosed both in the video itself and in the description near the links, and that the reader should be able to see the disclosure and the link at the same time. A single line at the top of a 3,000-word review does not carry to a link in the final section.
For a merchant running a programme, that translates into a specific instruction to give affiliates: repeat the disclosure at each link cluster, not once per page. It is also the thing to check when you sample posts, because it is the failure that survives even conscientious affiliates.
Affiliate agreement template
Full text, free to read and copy — commission terms, disclosure and advertising compliance, prohibited practices, brand and trademark use, tracking, termination and clawback.
The UK runs the same idea through different machinery
The principle is the same — an ad must be obviously identifiable as an ad — but the enforcement architecture is not. In the UK it operates through the CAP Code, administered by the Advertising Standards Authority, alongside consumer protection legislation. That legislative underpinning changed recently: the unfair commercial practices provisions previously found in the Consumer Protection from Unfair Trading Regulations now sit in the Digital Markets, Competition and Consumers Act 2024. The ASA publishes an influencers' guide covering when content must be disclosed, how to make clear an ad is an ad, and affiliate marketing specifically.
One programme, two regulators: what has to change and what does not
FTC only
- Advertiser liable for endorsers it pays and directs
- Reasonable programme to train and monitor
- "I earn a commission" is acceptable wording
Write once, use in both
- An unexpected material connection must be disclosed
- The disclosure has to be unavoidable, not behind "more"
- Free product counts, at any value
ASA and the DMCC Act only
- "Ad" prominently at the very start
- CAP Code administered by the ASA
- Unfair practices now in the 2024 Act
If you run one programme across both markets, comply with the stricter placement rule and use wording that satisfies both.
What the affiliate agreement should actually say
The agreement will not discharge your obligation, but it is what lets you act when something goes wrong, and it is what makes recovery possible.
- A disclosure obligation with the wording and placement specified, not a general reference to applicable law.
- A prohibited-practice list: no claims beyond your approved copy, no health or earnings claims, no bidding on your brand terms if that is your position, no incentivised or fake reviews, no cookie stuffing.
- A right to require removal or amendment of any post within a stated period.
- Immediate suspension and commission clawback for non-compliance, which is the only remedy with real force.
- An indemnity covering regulatory action and third-party claims arising from the affiliate's content.
- A limited trademark licence defining exactly how your brand may be used, and ending on termination.
- No authority to bind you — affiliates are independent contractors, and the agreement should say so and mean it.
Where a creator is being paid a fee rather than a commission, the arrangement is a different document with deliverables, usage rights and exclusivity: an influencer agreement rather than an affiliate one. The ownership of the content produced is a separate question again, and it defaults away from you unless assigned — see who owns the work.
The reason this is worth doing properly
Disclosure rules are unusually cheap to comply with. Four words at the top of a caption, a line above each affiliate link, and a quarterly sample of live posts is the whole of it. The cost of getting it wrong is not proportionate to that: it is a regulator asking for your affiliate list, your briefs and your monitoring records, and finding that the last two do not exist.
There is also the plainer point, which the FTC has made repeatedly and which tends to get lost in the compliance framing. An endorsement is worth something to a buyer because they believe it is honest. A programme that hides the commission is spending down the only asset the channel has.
Sources
- FTC — The Endorsement Guides: What People Are Asking
- FTC — Endorsements, Influencers, and Reviews
- FTC — Updated advertising guides to combat deceptive reviews and endorsements (June 2023)
- FTC — Disclosures 101 for social media influencers
- 16 CFR Part 255 — Guides concerning the use of endorsements and testimonials
- ASA — Influencers' guide
General information, not legal advice. This guide explains how these documents and rules generally work. Law varies by jurisdiction and changes, and none of it is applied to your circumstances here. For anything consequential, consult a licensed attorney where you are.
Frequently asked
Is #ad in the hashtags enough?
Usually not. A disclosure buried in a block of hashtags, below the fold, or behind a "more" link is not unavoidable, which is the test. Put it in plain words at the start of the caption or on screen in the video. In the UK, practice is stricter still: "ad" or "advertisement" prominently at the beginning rather than anywhere in the post.
Does the platform's "paid partnership" label do the job?
Not on its own. The revised Endorsement Guides say expressly that a platform's built-in disclosure tool might not be an adequate disclosure. Treat it as a supplement to a disclosure in the creator's own words, particularly for video, where the label may not be visible for long or at all when content is reshared.
Do I have to disclose when I only sent a free sample?
Yes. Free product is a material connection whether or not the recipient was obliged to post, and there is no value threshold below which it stops counting. Gifting programmes are the most common source of undisclosed endorsements precisely because they feel informal to the people running them.
Am I responsible if an affiliate makes a false claim about my product?
Potentially, yes — particularly where you supplied the claim, approved the copy, or directed the campaign. This is why the agreement should restrict affiliates to approved claims and give you a right to require amendment or removal, and why health, medical and earnings claims should be prohibited outright rather than reviewed case by case.
How much monitoring is enough?
The standard is reasonableness, not exhaustiveness. A documented sample of live posts at a regular interval, with a recorded response when something is wrong and evidence that the response was actually carried out, is defensible. Zero monitoring alongside a written policy is the weakest position of all.