Checklist · Commercial

Influencer and Endorsement Disclosure: A Practical Checklist

15 U.S.C. § 45

Type: Checklist
Jurisdiction: National
Date: 2024-12-29
Topic: Commercial

The FTC's Endorsement Guides, revised in 2023, make one thing plain: if a creator has a material connection to a brand, the audience must be told, in a disclosure that is unavoidable, understandable, and delivered in the same medium as the endorsement. This checklist walks brands, agencies, and creators through the whole compliance chain — identifying the material connection, meeting the clear-and-conspicuous standard, placing disclosures correctly on video, livestream, image, audio, and text, and choosing wording that actually works. It then turns to the harder questions: the endorser's own honest-use requirement, the brand's affirmative duty to instruct and monitor, and the rule that an influencer's claims become the brand's claims for substantiation purposes. It covers the FTC's 2024 Rule on the Use of Consumer Reviews and Testimonials, which for the first time attaches civil penalties to fake reviews, insider reviews, and review suppression. It closes with the contract terms that make compliance operational, the special rules for content directed to children, the state-law overlay, a common-mistakes section, and a consolidated one-glance checklist.

Influencer and Endorsement Disclosure: A Practical Checklist

Commercial > Advertising and Marketing | Published 29 December 2024 - Updated 16 January 2026 | UpLaw - uplaw.us

The law of influencer marketing is not complicated. It is one sentence: tell the audience what they would want to know, in a way they cannot miss. Nearly every enforcement action in this area is a story about a company that knew the sentence and hoped nobody would check.

Keywords: influencer marketing, FTC Endorsement Guides, material connection, clear and conspicuous, #ad, fake reviews rule, 16 C.F.R. Part 465, affiliate links, sponsored content, endorser liability, substantiation, incentivized reviews, COPPA, brand ambassador agreement

How to use this checklist

The governing instrument is the FTC's Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. Part 255, comprehensively revised in 2023. The Guides are not themselves law; they are the Commission's interpretation of what constitutes an unfair or deceptive act or practice under Section 5 of the FTC Act, 15 U.S.C. § 45. Violate them and the FTC does not sue you "under the Guides" — it sues you under Section 5 for deception, and it cites the Guides to show you were on notice. Since 2024, a second instrument sits alongside them with real teeth: the Rule on the Use of Consumer Reviews and Testimonials, 16 C.F.R. Part 465, which is a legislative rule and therefore carries civil penalties under 15 U.S.C. § 45(m)(1)(A) from the first violation.

Work the phases in order. Each phase gives you the check items first and the reasoning second, because the check items are what you will actually run against a campaign at 4:00 p.m. on a Friday.

Our running example is Brightwater Beverages, a mid-size sparkling-water company launching a functional electrolyte line. Brightwater has hired an agency, signed twenty TikTok creators, one YouTube reviewer with 800,000 subscribers, and one Twitch streamer for a two-hour launch-night livestream. It also has 40 employees, a Shopify review widget, and an affiliate program. Every trap in this document is one Brightwater is about to walk into.

For the underlying doctrine, read alongside Advertising Law: A Comprehensive Guide to the FTC Act and Lanham Act; for the evidence side of any claim a creator makes on your behalf, see Substantiating Advertising Claims: A Practical Checklist. If you are a small business running this program without in-house counsel, start with Advertising Law for Small Businesses: A Practical FAQ.

Phase 1 — Identify the material connection

[ ] Map every person who will speak about the product: paid creators, ambassadors, affiliates, employees, contractors, investors, agency staff, the founder's cousin.
[ ] Flag cash payment in any form — flat fee, per-post rate, bonus, revenue share, gift card, appearance fee.
[ ] Flag free or discounted product, including product sent unsolicited to a creator who was never asked to post.
[ ] Flag non-cash consideration: travel, hotel, event access, early access, exclusive drops, entry into a sweepstakes, a chance to be featured.
[ ] Flag employment or business relationships: employees, contractors, agency staff, distributors, franchisees, equity holders, board members.
[ ] Flag personal relationships: family members, close friends, romantic partners of anyone at the brand.
[ ] Flag affiliate and commission arrangements, including creator storefronts and shoppable tags.
[ ] Flag brand-controlled personas: virtual influencers, AI-generated spokespeople, and brand-owned "review" accounts.
[ ] Record, for each, whether an ordinary member of the audience would reasonably expect the connection. If not, it must be disclosed.

Why it matters, and the traps. Section 255.5 supplies the trigger: a material connection is a connection between the endorser and the seller "that might materially affect the weight or credibility of the endorsement" — that is, a connection the audience would not reasonably expect. The test is not whether the creator felt influenced. It is whether the audience, told about the arrangement, would discount the praise. The answer is almost always yes.

Three traps recur. First, free product counts. Brightwater's PR firm mails 400 cans to micro-creators with no contract and no ask. Thirty of them post. Those posts carry a material connection, and the Commission has said so repeatedly. Second, the connection does not have to be secret to matter — a creator who has been an ambassador for two years still discloses on every post, because a new viewer arriving from the For You page has no history with the account. Third, the 2023 revision broadened what counts as an endorsement at all: a tag, a like, or a "shoutout" can be an endorsement, and the definitions now reach virtual influencers and AI-generated personas. If the brand controls the mouth, the brand owns the words. If you are deploying synthetic spokespeople or generative tooling anywhere in the funnel, run the governance analysis in AI Governance and Compliance: A Comprehensive Guide alongside this checklist.

Phase 2 — Meet the clear-and-conspicuous standard

[ ] Confirm the disclosure is unavoidable — the consumer cannot consume the endorsement without encountering it.
[ ] Confirm it is in the same medium as the endorsement: visual for visual, audible for audible, both for audiovisual.
[ ] Confirm it is understandable to ordinary consumers in the actual audience — no jargon, no invented abbreviations.
[ ] Confirm it is in the same language as the endorsement itself.
[ ] Confirm nothing in the content contradicts or undercuts the disclosure.
[ ] Confirm the disclosure survives truncation: it is visible before "…more," above the fold, and in the preview/caption crop.
[ ] Confirm it survives muting and autoplay — a spoken-only disclosure on a silently autoplaying video reaches no one.
[ ] Confirm on-screen text is on screen long enough to read, at adequate size and contrast.

Why it matters, and the traps. Section 255.0(f) supplies the definition: clear and conspicuous means difficult to miss (that is, easily noticeable) and easily understandable by ordinary consumers. The 2023 revision emphasized the word that changed practice: in interactive media, the disclosure must be unavoidable. That is a design requirement, not a drafting requirement. A perfect disclosure that a consumer can scroll past is not clear and conspicuous.

The enforcement history is a museum of avoidable placement. In the FTC's action against a detox-tea marketer, influencer disclosures sat below the Instagram "more" cutoff. In the Commission's matters concerning YouTube gaming campaigns, disclosures were parked in the description box below the fold. In the Lord & Taylor Instagram campaign, dozens of creators posted the same dress over the same weekend with no disclosure at all. None of these were close cases. They were, in each instance, a disclosure that existed somewhere but not where the eye landed.

Phase 3 — Platform-by-platform placement

[ ] Long-form video (YouTube): superimpose the disclosure on screen at the start, and say it out loud, and repeat it if the endorsement recurs later in a long video. The description box alone is not enough. The platform's "includes paid promotion" checkbox is helpful but not sufficient on its own.
[ ] Short-form video (TikTok, Reels, Shorts): put the disclosure in the first frames as superimposed text and in the caption before any truncation. Use the platform's Branded Content toggle in addition to, never instead of, your own disclosure.
[ ] Livestream (Twitch, TikTok Live, YouTube Live): say it at the top, repeat it periodically throughout — viewers join mid-stream — and keep a persistent on-screen overlay for the sponsored segment.
[ ] Image posts and Stories: superimpose the disclosure on the image itself, in high contrast, held long enough to read. Do not rely on the caption alone for a Story, and never on the profile bio.
[ ] Audio and podcasts: the disclosure must be spoken, in the ad read itself, not buried in show notes.
[ ] Text posts, blogs, and threads: disclose at the top of the post and before any link; on a thread, disclose in the first post, not the fifth.
[ ] Reposts and whitelisting: every re-cut, re-upload, or paid amplification of creator content must carry its own disclosure.

Why it matters, and the traps. Brightwater's launch-night Twitch stream runs two hours; the sponsored segment is minutes 40 through 55. A disclosure delivered only in minute one reaches the viewers who arrived at minute one. Everyone who clicked in from a raid at minute 45 sees an enthusiastic person drinking a can. The rule of thumb: disclose when the audience is present, not when the broadcast begins.

Platform tools are the second trap. Instagram's "Paid partnership with" label, TikTok's Branded Content toggle, and YouTube's paid-promotion notice are all useful, and you should always switch them on — but the FTC has been explicit that a built-in tool may not by itself be clear and conspicuous, because it can be small, easily missed, or stripped when content is cross-posted. Use the tool and say it yourself. For the wider platform-law landscape, see Social Media Law: A Field Guide to the Legal Stack and Website and Internet Law: A Comprehensive Guide.

Phase 4 — Wording that works and wording that fails

[ ] Use plain, unambiguous terms: "Ad," "Advertisement," "Sponsored," "Paid partnership with [Brand]," "[Brand] paid me to make this," "Brightwater sent me this for free."
[ ] Place the disclosure at the beginning, not trailing a wall of hashtags.
[ ] Ban the failures: #sp, #spon, #collab, #partner, #ambassador, #thanks, "thanks to @brand," "in collaboration with," #brightwaterpartner — none of these reliably tells an ordinary consumer that money changed hands.
[ ] Ban ambiguous gratitude: "Thanks @Brightwater for the goodies!" reads as a compliment, not a paid arrangement.
[ ] Do not bury the disclosure in a hashtag stack, in the bio, in a pinned comment, or on a separate "disclosures" page.
[ ] Match the disclosure to the connection: if you were given the product, say so; if you were paid, say so; if you earn a commission, say so.
[ ] Non-English content gets a non-English disclosure.

Why it matters, and the traps. The FTC's staff guidance, Disclosures 101 for Social Media Influencers, is unusually blunt on vocabulary, and it is the document your creators should actually read. Abbreviations like "#sp" fail because the Commission does not accept that ordinary consumers decode them. "Ambassador" fails because consumers hear a relationship, not a payment. "Thanks to" fails because it is what people say about gifts from friends.

Note the asymmetry that catches sophisticated brands: a disclosure can be accurate and still deceptive by omission. If Brightwater pays a creator and gives her equity, "#ad" understates the connection. Disclose the connection that would move the consumer most.

Phase 5 — The endorser must actually have used the product and believed the claim

[ ] Confirm the creator actually used the product before endorsing it.
[ ] Confirm the endorsement reflects the creator's honest opinions, findings, beliefs, or experience.
[ ] Do not put words in the creator's mouth: no scripted claim the creator does not personally hold.
[ ] Do not permit an endorsement of a product the creator has not tried, even if the script is technically true.
[ ] Keep evidence: shipping confirmation, unboxing content, the creator's written attestation of actual use.
[ ] For expert endorsements, confirm the endorser's qualifications are real and the endorsement is supported by an evaluation an expert in that field would actually conduct (16 C.F.R. § 255.3).
[ ] Never generate a "customer," a "reviewer," or a testimonial with an AI tool. A person who does not exist cannot have an honest opinion.

Why it matters, and the traps. Section 255.1 requires that endorsements reflect the honest opinions, findings, beliefs, or experience of the endorser, and § 255.2 requires that a consumer endorsement reflect the endorser's actual experience with the product. A disclosed lie is still a lie. "#ad — this is the best hydration product I've ever had," said by someone who has never opened the can, is deceptive with or without the hashtag.

The 2023 Guides also reach procured endorsements: an advertiser that hands a creator a script full of claims the creator has no basis to make is not insulated because the creator said the words. And the fabrication problem now has a technological edge — an AI-generated "customer" or a synthetic testimonial from a person who does not exist is not merely an unfair or deceptive practice under Section 5; it is squarely within the prohibition in 16 C.F.R. § 465.2, where civil penalties attach. If your marketing stack includes generative tooling, put it through Deploying an AI System: An AI Governance and Risk Checklist before it touches customer-facing copy.

Phase 6 — The brand's duty to instruct, monitor, and act

[ ] Provide written disclosure instructions to every creator, in plain language, before any content goes live.
[ ] Obtain a signed acknowledgment that the creator has read and will follow them.
[ ] Provide format-specific examples (what a compliant TikTok caption looks like; what a compliant livestream overlay looks like).
[ ] Run a monitoring program: review a meaningful sample of live posts, not just the drafts you approved.
[ ] Log the monitoring. Undocumented monitoring is, to a regulator, no monitoring.
[ ] Build an escalation ladder: notify → require correction within a stated window → withhold payment → terminate → require takedown.
[ ] Actually climb it. A brand that finds a violation and does nothing has adopted it.
[ ] Confirm the agency is doing the same. Advertising agencies, PR firms, and review brokers have independent exposure under the Guides.

Why it matters, and the traps. This is where most programs fail, and they fail in a specific way: the brand writes an excellent influencer policy, sends it once, and never looks at a live post again. Section 255.1 contemplates that advertisers are subject to liability for false or unsubstantiated statements made through endorsements and for failing to disclose material connections in endorsements disseminated on their behalf; it also contemplates liability for endorsers themselves and for intermediaries such as agencies and PR firms. The Commission's consent orders in this space routinely impose exactly this triad: instruct, monitor, act.

Brightwater's agency approves twenty TikTok drafts, all compliant. Four creators, posting from their phones at midnight, drop the disclosure to make the caption fit. Nobody checks. Six weeks later a competitor's counsel sends the screenshots to the FTC. The approved drafts are irrelevant; what went live is the advertisement. Build the sampling review into the campaign calendar, and staff it.

Phase 7 — The influencer's claims are the brand's claims

[ ] Give creators a claims matrix: approved claims, disapproved claims, and absolutely-never claims.
[ ] Confirm every approved claim has competent and reliable evidence on file before the campaign launches.
[ ] Treat health, safety, and efficacy claims as radioactive: "cures my migraines," "replaces an IV drip," "helped my hangover" are disease and efficacy claims requiring rigorous substantiation.
[ ] Watch for unauthorized claims by improvisation — the creator riffs, and the riff becomes a claim.
[ ] Watch for implied claims from visuals — a lab coat, a heart-rate monitor, a "before and after."
[ ] Escalate any performance or comparative claim to counsel before it airs.

Why it matters, and the traps. The advertiser is responsible for the truth and substantiation of claims made through endorsements, whether or not the advertiser wrote them. A creator's spontaneous "this fixed my post-workout cramps" converts Brightwater's flavored water into a product making a health claim — and now Brightwater needs the science, in advance, that a health claim requires. The Commission's Health Products Compliance Guidance (2022) sets the expectation for health-related claims, and the Lanham Act supplies a private cause of action for competitors who are injured by a false claim, whoever's mouth it came out of: see False Advertising Under Lanham Act Section 43(a): Competitor Claims in Tech Marketing. The evidentiary discipline — what "competent and reliable scientific evidence" actually means, and how to build the file before launch — is set out in Substantiating Advertising Claims: A Practical Checklist.

Phase 8 — Fake and incentivized reviews under the 2024 Rule; employee reviews

[ ] Never create, buy, sell, or disseminate a review or testimonial from a person who does not exist, an AI persona, or someone with no actual experience with the product (16 C.F.R. § 465.2).
[ ] Never condition compensation on the sentiment of a review — no paying for positive reviews, no paying for negative reviews of a competitor (§ 465.3).
[ ] If an employee, officer, or manager reviews the company's product, the relationship must be clearly disclosed; officers and managers may not solicit undisclosed reviews from employees or their relatives (§ 465.4).
[ ] Do not run a purportedly independent review site that you in fact control (§ 465.5).
[ ] Do not suppress reviews by unfounded legal threats, physical threats, or intimidation, and do not publish a subset of reviews while implying it is the whole set (§ 465.6).
[ ] Do not buy or sell fake indicators of social media influence — bot followers, purchased views, fake engagement (§ 465.7).
[ ] Incentivized reviews are permissible only if (a) the incentive is not conditioned on a positive review and (b) the incentive is clearly disclosed on the face of the review.
[ ] Configure the review widget so that incentivized and employee reviews are badged, not silently mixed in with organic ones.
[ ] Preserve negative reviews. Deleting them selectively is the classic § 465.6 problem.

Why it matters, and the traps. Part 465 changed the stakes. Before it, the FTC's ability to obtain monetary relief for a first-time deception was sharply limited by AMG Capital Management, LLC v. FTC, 593 U.S. 67 (2021), which held that Section 13(b) of the FTC Act does not authorize the Commission to obtain equitable monetary relief such as restitution or disgorgement. The Commission's structural answer was rulemaking: a violation of Part 465 is a violation of a trade regulation rule, and civil penalties attach under 15 U.S.C. § 45(m)(1)(A) — a per-violation maximum that now exceeds $50,000 and is adjusted annually for inflation, with each deceptive review potentially counted separately. Confirm the current adjusted figure before you brief a board on exposure.

Two traps deserve emphasis. First, employee reviews are the most common corporate violation and the least intentional. Brightwater's head of growth posts a five-star Amazon review; two customer-success reps do the same, on their manager's suggestion. That is a textbook § 465.4 problem, and it echoes an earlier FTC action against a skincare company whose executives instructed staff to post reviews on a retailer's site under invented names. Second, review gating is suppression. A widget that routes four- and five-star responses to the public page and one-star responses to a private inbox produces a curated subset presented as the whole — precisely what § 465.6 targets.

Phase 9 — Affiliate links, tags, and shoppable content

[ ] Disclose the commission relationship before the link, not after it, and in the same visual field.
[ ] Use language a consumer understands: "I earn a commission if you buy through this link." A bare "#affiliate" or a boilerplate footer is not enough.
[ ] Disclose on every post containing an affiliate link, not once on a disclosures page.
[ ] Treat creator storefronts, shoppable tags, and product-tagged videos as endorsements requiring disclosure.
[ ] In link-in-bio pages and roundup posts, disclose at the top of the page and next to each commissioned item.
[ ] Ensure the disclosure survives cross-posting, embedding, and syndication.
[ ] Confirm the affiliate terms prohibit false claims, trademark bidding abuse, and coupon-code spam.

Why it matters, and the traps. An affiliate commission is a paradigm material connection: the endorser makes money if you buy. Consumers routinely do not know this. The disclosure must be proximate to the link — a viewer who taps the first product in a "my 10 hydration essentials" carousel should have already seen the disclosure by the time their thumb lands. If the creator uses the brand's marks, or the brand reposts the creator's face into paid media, add the publicity-rights layer: The Right of Publicity: Controlling Commercial Use of Name, Image, and Likeness and The Right of Publicity and NIL: A Comprehensive Guide. If the same campaign drives an email list, run CAN-SPAM Compliance for Commercial Email: A Practical Checklist as well.

Phase 10 — Contract terms that make compliance operational

[ ] Compliance covenant: creator will comply with 16 C.F.R. Part 255, 16 C.F.R. Part 465, the FTC Act, and platform policies.
[ ] Specified disclosure language and placement, by format, in an exhibit — not a vague "you must disclose."
[ ] Actual-use representation: creator represents she has used the product and the endorsement reflects her honest opinion.
[ ] Claims restriction: creator will make no claim outside the approved claims matrix; no health or efficacy claims.
[ ] Approval right: brand may review content before posting, and creator will not materially alter approved content.
[ ] Monitoring and audit right: brand may review live content and analytics; creator will preserve posts for a stated period.
[ ] Takedown and correction right: brand may require edit or removal within a short, specified window (24–48 hours).
[ ] Payment leverage: final payment conditioned on verified compliant posting.
[ ] Indemnity and insurance — with eyes open about their limits.
[ ] IP and publicity license: scope, term, territory, and whether paid amplification (whitelisting) is included.
[ ] Morals clause and termination for cause.
[ ] No-bots covenant: creator warrants engagement metrics are not artificially inflated (§ 465.7 exposure runs to purchased followers).
[ ] Survival: disclosure and takedown obligations survive termination while content remains live.
[ ] Independent-contractor status correctly characterized — an always-on ambassador with a content calendar and mandatory approvals starts to look like something else: see Classifying Workers: Employee or Independent Contractor — A Practical Checklist and Worker Classification: A Comprehensive Guide to Employee and Independent Contractor Status.

Why it matters, and the traps. The single most important thing to understand about influencer contracts is what they cannot do: an indemnity does not shift regulatory liability. If Brightwater's creator omits the disclosure, the FTC's respondent is Brightwater. The indemnity may (if the creator has assets, which is often optimistic) let Brightwater recover afterward. It does not stop the consent order, the compliance reporting obligation, or the press release. Contract terms are a management tool, not a shield. Draft them to make compliance happen, not to allocate blame after it fails. For general contract architecture — representations, indemnities, termination, survival — see The Commercial Contracts Toolkit: Drafting, Reviewing, and Enforcing Business Agreements.

Phase 11 — Children, vulnerable audiences, and the state-law overlay

[ ] Determine whether the content is directed to children — subject matter, animation, music, talent, platform placement, and the actual audience data.
[ ] Apply 16 C.F.R. § 255.6: endorsements directed to children warrant heightened scrutiny, because children may not understand a disclosure at all.
[ ] Assume a child audience cannot reliably distinguish advertising from content. Disclosure alone may not cure the deception; sometimes the format itself must change.
[ ] Screen for COPPA: if a child-directed site, app, or channel collects personal information from users under 13, verifiable parental consent is required (Children's Online Privacy Protection Act, 15 U.S.C. § 6501 et seq.; COPPA Rule, 16 C.F.R. Part 312).
[ ] Consult the CARU self-regulatory guidelines for child-directed advertising, administered by BBB National Programs.
[ ] Apply the same care to other vulnerable audiences: health-condition communities, financial-distress audiences, and audiences addressed in a language other than English.
[ ] For minor creators, check state law on minors' contracts, parental consent, and (in states including California and New York) trust requirements for minor performers' earnings. There is no uniform national rule here.
[ ] Check the state UDAP overlay: every state has a consumer-protection statute, and their remedies, penalties, and private rights of action differ materially. Confirm the rule in each state where you advertise.

Why it matters, and the traps. The 2023 revision added § 255.6 precisely because the "unboxing" economy runs heavily on child audiences. The doctrinal move is subtle but important: for adults, disclosure cures the deception; for children, disclosure may not be capable of curing it, because the child cannot process what "#ad" means. If Brightwater's electrolyte line is promoted by a family-vlog channel whose audience skews to eight-year-olds, the compliance question is not "did we say #ad," it is "should we be running this format at all."

The state-law point deserves its own emphasis, because it is where nationwide-rule thinking gets brands hurt. There is no single national influencer-disclosure statute beyond the FTC Act. State attorneys general enforce their own unfair-and-deceptive-practices statutes — for example, California's Unfair Competition Law and false advertising law (Cal. Bus. & Prof. Code §§ 17200, 17500) and the Consumers Legal Remedies Act (Cal. Civ. Code § 1770), or New York's General Business Law §§ 349–350 — and several have pursued astroturfing and fake-review campaigns independently of the FTC. Some of these statutes carry private rights of action and statutory damages that the FTC Act does not. Assume the FTC standard is the floor, not the ceiling, and verify the states that matter to your campaign. Layer on the privacy analysis from Mobile App Privacy Law: A Compliance Map for Founders and Counsel and Drafting a Privacy Policy: A Practical Checklist; if the campaign touches a new site or storefront, also run Launching a Website: A Legal Compliance Checklist.

The worked example, start to finish

Brightwater's launch is on a Thursday. Here is what a compliant version of it looks like.

Two weeks out. Legal builds the claims matrix. "Hydration you can taste" is approved. "Replaces electrolytes lost in exercise" is approved only with the supporting study on file. "Helps with hangovers" and "supports immunity" are absolutely-never claims — they are health claims, and Brightwater has no science. The matrix goes into Exhibit B of every creator agreement.

Ten days out. Every creator — the twenty TikTokers, the YouTuber, the Twitch streamer, and the 400 PR-package recipients who were never under contract — receives written disclosure instructions with format-specific examples and signs an acknowledgment. The PR-package recipients get a one-page card in the box: if you post about this, say Brightwater sent it to you for free.

Launch day. The TikTok creators open with on-screen text reading "Ad — paid partnership with Brightwater" in the first two seconds, repeat it in the caption before the truncation point, and switch on the Branded Content toggle. The YouTuber superimposes the disclosure and says it aloud in the first fifteen seconds, then again when the sponsored segment resumes at minute twelve. The Twitch streamer keeps a persistent overlay for minutes 40 through 55 and says it aloud on entering and re-entering the segment.

Launch night. The agency samples live posts — not drafts — at 8:00 p.m. and again at 11:00 p.m. Two creators dropped the disclosure to shorten a caption. Both get a correction notice within the hour, with a 24-hour cure window and final payment held. Both fix it. The monitoring log records who was checked, when, what was found, and what was done.

Week two. Brightwater's head of growth is politely told not to post an Amazon review, because he is an employee and an undisclosed insider review is a civil-penalty problem, not an etiquette problem. The Shopify widget is reconfigured so that reviews from customers who received a free sample carry an "incentivized review" badge, and so that low-star reviews route to the same public page as high-star reviews.

Nothing in this sequence is expensive. All of it is boring. That is the point: the compliant campaign and the non-compliant campaign differ by about six hours of work and one person who owns the calendar.

Common mistakes to avoid

Treating the platform toggle as the disclosure. It is a supplement. Say it yourself, in your own words, on the face of the content.
Disclosing only in the caption on a Story or short-form video. Superimpose it. People watch; they do not read.
Putting the disclosure at the end of a hashtag stack. "#hydration #fitness #wellness #summer #ad" is a disclosure nobody reads. Lead with it.
Relying on "ambassador," "partner," or "#sp." These are the specific kinds of terms the FTC has said do not work.
Disclosing once at the top of a two-hour livestream. Repeat throughout the sponsored segment.
Assuming free product is not a payment. It is. Even unsolicited.
Letting employees review the company's products without disclosure. A § 465.4 violation with civil-penalty exposure.
Review gating. Routing negative feedback away from the public page is suppression.
Approving drafts and never checking what went live. The live post is the ad.
Believing the indemnity clause protects you from the FTC. It does not.
Ignoring re-cuts and whitelisting. Every amplified version needs its own disclosure.
Forgetting the endorser's own liability. Creators can be named as respondents in their own right, and the Commission's 2021 Notice of Penalty Offenses concerning endorsements and testimonials put hundreds of companies on formal notice, creating penalty exposure under 15 U.S.C. § 45(m)(1)(B).
Assuming the FTC is the only regulator. State UDAP statutes reach the same conduct, sometimes with private rights of action.

The consolidated disclosure checklist

[ ] Every person speaking for the brand is mapped, and each material connection is identified.
[ ] Every endorsement discloses its material connection.
[ ] The disclosure is unavoidable, in the same medium, in the same language, and understandable to ordinary consumers.
[ ] It appears before any truncation and survives autoplay, muting, and cross-posting.
[ ] Video: on-screen and spoken. Livestream: repeated. Image/Story: superimposed. Audio: read aloud. Text: above the link.
[ ] The wording is "Ad," "Sponsored," "Paid partnership with [Brand]," or an equally plain statement — never "#sp," "#collab," or "thanks."
[ ] The endorser actually used the product and honestly believes the claim.
[ ] No endorsement, review, or testimonial anywhere in the funnel comes from a person who does not exist.
[ ] Every claim in the content is on the approved claims matrix and is substantiated in advance.
[ ] The brand has instructed, has documented the instruction, is monitoring live content, and has acted on every violation found.
[ ] No fake, insider, purchased, or sentiment-conditioned reviews exist anywhere in the funnel.
[ ] Incentivized reviews are unconditioned and badged; negative reviews are preserved.
[ ] Affiliate commissions are disclosed proximate to every link.
[ ] The creator agreement contains disclosure specs, actual-use and claims covenants, monitoring, takedown, payment leverage, and a correctly scoped IP/publicity license.
[ ] Child-directed and vulnerable-audience content has been separately reviewed, including for COPPA.
[ ] The state-law overlay has been checked for every state that matters to the campaign.
[ ] The whole program has an owner, a calendar, and a paper trail.

Primary Authority

FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. Part 255 (revised 2023) — § 255.0 (definitions, including "endorsement" and "clear and conspicuous"); § 255.1 (general considerations; advertiser, endorser, and intermediary liability); § 255.2 (consumer endorsements); § 255.3 (expert endorsements); § 255.5 (disclosure of material connections); § 255.6 (endorsements directed to children).
FTC Act § 5, 15 U.S.C. § 45 — the prohibition on unfair or deceptive acts or practices; § 45(m)(1)(A) civil penalties for violations of a trade regulation rule; § 45(m)(1)(B) penalties for conduct the Commission has previously found unfair or deceptive, following a Notice of Penalty Offenses.
FTC Rule on the Use of Consumer Reviews and Testimonials, 16 C.F.R. Part 465 (2024) — § 465.2 (fake or false consumer reviews, consumer testimonials, and celebrity testimonials); § 465.3 (buying positive or negative consumer reviews); § 465.4 (insider consumer reviews and testimonials); § 465.5 (company-controlled review websites); § 465.6 (review suppression); § 465.7 (misuse of fake indicators of social media influence).
FTC, Disclosures 101 for Social Media Influencers (staff guidance) — the Commission staff's plain-language statement of what a creator must say, where, and how; the working reference for the wording rules in Phase 4.
Children's Online Privacy Protection Act, 15 U.S.C. § 6501 et seq., and the COPPA Rule, 16 C.F.R. Part 312 — child-directed content and the collection of personal information from users under 13.
Lanham Act § 43(a), 15 U.S.C. § 1125(a) — competitor actions for false advertising, including false claims made through endorsers.
AMG Capital Management, LLC v. FTC, 593 U.S. 67 (2021) — Section 13(b) of the FTC Act does not authorize the Commission to obtain equitable monetary relief; the decision that pushed the Commission toward rulemaking and penalty-offense notices.
State UDAP statutes — state law is not uniform. Representative examples include California's Unfair Competition Law and false advertising law, Cal. Bus. & Prof. Code §§ 17200 and 17500, and the Consumers Legal Remedies Act, Cal. Civ. Code § 1770; and New York General Business Law §§ 349–350. Remedies, penalties, and the availability of a private right of action vary by state; confirm your own state's statute.

Secondary sources. FTC staff guidance: The FTC's Endorsement Guides: What People Are Asking and Health Products Compliance Guidance (2022). Self-regulation: the National Advertising Division (NAD) of BBB National Programs, which hears competitor challenges to advertising claims, and the Children's Advertising Review Unit (CARU), which administers the self-regulatory guidelines for child-directed advertising and refers non-compliance to the FTC. The Commission's published consent orders in the influencer and endorsement space — including the Lord & Taylor and CSGO Lotto matters and the actions concerning undisclosed influencer promotion of consumer products — remain the most concrete guidance available on what "clear and conspicuous" actually requires in practice.

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This checklist is general legal information from UpLaw (uplaw.us), not legal advice, and does not create an attorney-client relationship. Laws vary by state and change over time; verify current requirements and consult qualified counsel before acting.