Five months after the Federal Trade Commission warned social media influencers to clearly label paid advertisements, a watchdog organization has found more than 200 posts by the Kardashian and the Jenner sisters that flaunt the FTC's guidelines.
On Monday night, Truth in Advertising (TINA.org) released a report that included a "sampling" of over 200 improper ad disclosures on the Facebook, Snapchat, and Instagram accounts of Kim, Kourtney, and Khloe Kardashian, and half-sisters Kendall and Kylie Jenner. Individual databases of FTC guideline infringements that TINA.org has compiled for each sister include posts promoting Puma, Jet Lux, Sugar Bear Hair, and Fit Tea, among other brands. In these selected posts, the Kardashians and Jenners used vague ad language that the FTC disavows, such as #sp (i.e. sponsored) or KJ4EL (Kendall Jenner for Estée Lauder). They also sometimes inserted ad disclosures days or hours after posts first went up, or neglected to mention their official affiliation with a brand altogether. TINA.org has sent a letter to the Kardashians' and the Jenners' legal representatives complaining of the sisters' continued flaunting of FTC guidelines.
This isn't the first time that TINA.org has found the Kardashians/Jenners in violation of federal advertising laws: In August of 2016, TINA.org filed a complaint with the Kardashian/Jenner family and the FTC that cited over 100 examples of undisclosed paid ads on the sisters' social media accounts. In the September of 2017 report, part of TINA.org's usual follow-up with individuals or organizations they flag, TINA.org found that 45 percent of posts that were included in the original report were fixed after it was issued, either by being deleted or modified. But another 15 percent now contain "insufficient disclosures," and 40 percent were never fixed, TINA.org found.
These vague disclosures and non-disclosures are in violation of section 5 of the FTC Act, which states that "unfair or deceptive acts or practices in or affecting commerce ... [are] declared unlawful." The social media posts also ignore FTC endorsement guidelines, which the agency updated earlier this month.
"The whole goal of social media marketing is to engage consumers with ads that feel very authentic and thereby more trustworthy," Bonnie Patten, TINA.org's executive director, tells Pacific Standard. "Splashing a disclosure that something's an ad really ruins the authentic vibe, so that's why I think the brands and influencers are hesitant to properly disclose—because the consumers just aren't going to like it."
The report comes as the FTC is beginning to crack down on social media influencers; traditionally, the FTC has warned the brands that chose to advertise on those influencers' accounts. In April, in response to petitions filed by the watchdog organization Public Citizen and "affiliated organizations," the FTC sent out 46 letters to social media influencers with reminders to clearly present paid posts as advertisements. This was the first time the agency had ever contacted individual influencers regarding false advertising on social media. And last month, the FTC followed up with 21 of those influencers, warning them of new infractions against the agency's Endorsement Guide. The FTC has promised that action may be taken "if the endorser has continued to fail to make required disclosures despite warnings."
The new report suggests the Kardashian/Jenner sisters have not been taking the FTC's threat seriously, despite being repeatedly apprised of federal rules. In perhaps the most calculated examples of rule-flaunting in TINA.org's Kardashian/Jenner database, several posts incorporated ad disclosures hours or days after they first went up. According to a 2014 Union Metrics report, Instagram posts get 90 percent of its comments and likes within the first 10 hours that they have been live—when influencers mention that a post is a #ad outside of this window, they maximize engagement of the post as if it were a regular publication, while misleading viewers. In other instances, ads were disclosed on one social media platform, such as Instagram, but not on another, like Facebook.
Nevertheless, the Kardashian and Jenner clan may manage to avoid penalty. "To date, it appears that the Kardashian/Jenner sisters have escaped this FTC crackdown largely unscathed," the TINA.org report states. The Kardashians/Jenners only appear in one of the FTC's April warning letters, a warning issued to fast-food chain Popeye's chief executive officer Cheryl Bachelder, regarding an Instagram of Kourtney Kardashian eating its chicken wings on a private jet without an ad disclosure. The post has not since been amended. (A full list of celebrities contacted by the FTC in April is available at the National Law Journal, made available by a Freedom of Information Act request.)
"TINA.org's latest findings across the three social media platforms (Facebook, Instagram, Snapchat) show that the Kardashian/Jenner women are well aware of the need to reveal their relationships with brands, they just choose not to," TINA.org's report concludes.