The regulatory landscape has sharpened, and the biggest change is the FTC's updated Endorsement Guides, which leave no room for ambiguity. The responsibility for monitoring influencer disclosures and ensuring compliance now falls squarely on the brand, even if you didn't directly commission the post. The days of sending out products and hoping for the best are over. In a conversation on Future Commerce, attorney Robert Freund emphasized that compliance with advertising law is “everyone's responsibility,” and brands simply can't pass the buck to creators.
This shift fundamentally changes the calculus around gifted products. Previously, many brands operated in a gray area, assuming that if no contract was signed or payment exchanged, they weren't liable for what an influencer posted. The new guidelines clarify the concept of a “material connection.” As Rob Freund made this point clearly on The Bottom Line, even sending a free product without an explicit request for a post can create a material connection that requires disclosure. If that influencer posts about your product and fails to disclose the gift, the FTC sees you, the brand, as liable. You can't just fix it in subsequent content; the initial post is the problem.
Because of this, your Influencer Marketing Strategy needs to evolve from passive gifting to active management. Your first step should be education. The FTC expects you to train your influencers, which means you need to provide them with clear, simple instructions on what disclosures are required and where they should be placed. This should be part of your onboarding for any partner, big or small.
Second, you must have a system for monitoring. You are expected to keep an eye on what your influencers are posting. This doesn't have to be an expensive, time-consuming manual effort. Setting up alerts or using a platform can help, but a process needs to exist. As Freund noted, if you do find a non-compliant post, taking quick action to have it corrected or taken down looks much better to regulators than pleading ignorance. This proactive monitoring has other benefits. As Yash Chavan pointed out on eCommerce Fastlane, a lack of monitoring is how brands fall victim to rampant affiliate fraud, so the same process you use for compliance can also protect your marketing budget.
Finally, this puts more weight on your influencer vetting process. When evaluating a potential partner, don't just look at their follower count and engagement rate. Look at their past sponsored posts. Are they disclosing their relationships correctly and clearly? An influencer who is careless about disclosures for other brands will be careless with yours. Building Influencer Relationships on a foundation of clear communication and mutual understanding of these rules is the only way to operate now. It's not just about avoiding fines; it's about building trust and running a professional, sustainable program.