The biggest mistake brands make with influencer gifting is thinking that disclosure is a judgment call. It isn’t. If you’ve provided a product to an influencer in the hopes of getting a mention, the need for clear disclosure is absolute.
One common error is the "it was just a gift" fallacy. Many brands believe that if they don't sign a contract or explicitly ask for a post, they haven't created a formal partnership that requires disclosure. But as attorney Rob Freund explains on The Bottom Line: Ecommerce Tactics for Profitable Growth, the Federal Trade Commission (FTC) operates on a much broader principle of "material connection." If an influencer has a relationship with a brand that might affect the credibility of their endorsement, the audience needs to know. A free product, regardless of its monetary value, establishes that connection. Failing to disclose it doesn't just risk FTC penalties; it erodes consumer trust, which is far more costly in the long run.
Another mistake is attempting to soften or hide the disclosure. Influencers and brands often prefer the feel of an organic post, so they use ambiguous tags like #sp, #partner, or even just #gifted. Sometimes they’ll bury the #ad hashtag in a long list of other tags or place it "below the fold" where a user has to click "see more." Freund emphasizes that FTC's new endorsement guidelines require the disclosure to be "clear and conspicuous," meaning it must be unavoidable. The goal isn’t to simply check a legal box; it’s to genuinely inform the audience that they are viewing a form of advertising. Anything less is a deliberate attempt to be confusing, and both consumers and regulators see it that way.
A third misconception surrounds an influencer gifting strategy known as product seeding. This is where you send products to influencers without any upfront agreement, a "giving, not asking" approach that Kurt Elster and Cody Wittick discuss on The Unofficial Shopify Podcast. Brands do this to build goodwill and hopefully earn organic mentions. The mistake here is assuming this lack of an "ask" creates a legal gray area. As Freund notes, the FTC’s own examples suggest otherwise. If you send a product to an influencer whose audience expects reviews of that product type, an endorsement has an implicit value. The audience has a right to know the product was obtained for free. The relationship between the brand and creator is what matters, not just whether a post was explicitly requested.
Ultimately, ethical business practices in this area are not about finding loopholes. They are about building genuine, long-term relationships with both creators and their audiences through transparency.