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Michael Bloomberg’s campaign is looking beyond traditional television ads and social media posts in order to promote his play for President: it is investing in influencer marketing. According to reports from the Daily Beast and other news outlets, the New York-based Democratic candidate’s name is tied to a call for “photo and video submissions that tells us why Mike Bloomberg is the electable candidate who can rise above the fray, work across the aisle so ALL Americans can feel heard and respected” from influencers. The quest for influencer content was published to influencer marketing platform Tribe, per the Daily Beast, and promises a $150 fee for all approved submissions.  

Interestingly, this is not the first time that a presidential wannabe has looked to the sweeping influencer economy – where spending on global influencer marketing amounted to an estimated $8.5 billion in 2019, according to CNBC – to reach voters. “Bernie Sanders has done one-off work with social-media influencers who reached out to help spread his message to their followers on platforms like YouTube,” the Wall Street Journal revealed, with his campaign working “with social-media influencers in the 2016 election,” as well. 

More recently, “A public relations firm working for [Democratic candidate] Andrew Yang, an entrepreneur, paid people to create memes that were shared with influencers to promote his proposal to pay all Americans a monthly ‘freedom dividend,’” the WSJ reported in September. A month later, a Democratic Super PAC spearheaded an effort to get bloggers and influencers to promote former 2020 candidate Cory Booker in exchange for compensation. To an extent the relatively unconventional move made sense; after all, as the Washington Post wrote last February, thanks to his “hyperactive Twitter account … Booker was, perhaps, the first true social media influencer in politics.”  

“Before Alexandria Ocasio-Cortez Instagrammed her congressional orientation and the #squad of female legislators stormed Capitol Hill feeds, before Elizabeth Warren relaxed after a long day of announcing she would run for president by drinking a beer on Instagram Live, there was Mayor Cory Booker and his hyperactive Twitter account,” the Post’s Kayla Epstein wrote early last year, noting that he has since “branched out to other platforms, such as Snapchat and Instagram.” 

The infiltration of social media with more digitally-fluent politicians is, itself, noteworthy, and proves particularly interesting when one of those politicians (i.e., Booker) decides to run for president and has a “personal Twitter following of 4.13 million users” – whom he wants “to feel as if they know him, they have a personal connection” – and to “whom [he can] disseminate his message.” 

But the promotion of potential Presidential candidates on social media by the candidates, themselves, and their official campaigns is one thing. More striking is the promotion of potential Presidential candidates on social media by individuals other than themselves in exchange for money. And that is precisely the direction political marketing is headed – albeit, unsurprisingly given that social media is precisely where huge portions of the general public spend their time and thus, stand to be influenced, ideally by “authentic” campaign efforts. 

Just as the Federal Trade Commission (“FTC”) almost certainly did not foresee the emergence of non-celebrity influencers when it released its revised digital-centric “Dotcom Disclosures” guidance back in 2013, it likely did not envision that Presidential candidates would be looking to influencers for the purpose of political promotion when it released its “Advertising Disclosures Guidance for Online Influencers” in 2019. Nonetheless, the uniform disclosure rules set forth by the government agency, one that is tasked with promoting consumer protection, among other things, apply, to some extent, at least.

The FTC’s rules require that whether an influencer is touting the desirability of a new fragrance (in exchange for cash) or intentionally placing an “it” bag – that she received as a gift from the brand – in her latest photo, she must disclosure the nature of those posts, namely, the connection between herself and the brand at play. The same holds true if the “brand” at play is a politician. Those disclosures typically take the form of hashtags, such as “Ad” or “Sponsored,” assuming that disclosures are made at all. (In many cases, they are not). 

While the FTC’s guides generally treat most advertisements the same way and thus, disclosure requirements can be met by way of a simple “#Ad”, not all standards for advertising disclosure are the same across the board. The standards at play are more rigorous, for instance, when it comes to the advertising of pharmaceuticals, as the Food and Drug Administration legally-requires that the advertising of medications, including on social media, come with often-lengthy risk information or important limitations of use for the drug. Meanwhile, the FTC mandates that objective claims about the effectiveness of products, such as beauty products, be “supported by competent and reliable scientific evidence.” 

In lieu of any specific guidance for political endorsements from the FTC (the Federal Communications Commission, on the other hand, has its own TV and radio-specific rules tailored exclusively to political ads), are the rules of disclosure essentially the same whether an influencer is promoting a Dior saddle bag or a Democratic Presidential candidate? Maybe not. 

As Bonnie Patten, the executive director of non-profit, advertising watchdog TINA.org, tells TFL, “While commercial speech (i.e., speech motivated by profit) can be restricted to prevent deceptive advertising, those engaged in political speech enjoy board protection under the First Amendment to say just about anything they want. As such, political endorsements are presumably held to a lower standard of disclosure than posts used to sell us goods and services.”  

Speaking to the subject of politician paid-for posts, University of New Hampshire School of Law professor Alexandra J. Roberts told TFL that when it comes to political posts, “The existing FTC guidelines should be enforced even if in other contexts we might treat political campaigns as more like

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speech and less like advertising.” 

Roberts says that proper disclosure “is particularly crucial—since the posts are [likely to be] less about specific campaign claims and more purely about endorsement [of a candidate].” In such a case, she claims, “making [it] clear to those who see [a social media post] that it was paid for by the campaign might make the difference between a deceptive practice and a fair one.” It is also significant that the endorsements refrain from including any “actual misleading claims—for example, not making false campaign promises or using stock photos to generate canned endorsements which the campaign authors and holds out as being from actual supporters.” 

Ultimately, Roberts aptly states that political endorsements via Instagram is “how marketing works now. People don’t watch traditional TV so they’re not going to see traditional ads, so of course we expect politicians to use the same methods that clothing and cosmetic brands are using. As for whether the FTC will take action in this front, the agency “is gearing up to seek public comment on its endorsement guides this year, so if voters or campaigns feel strongly about campaigns soliciting influencers, the issue is ripe and the timing is good.” 

UPDATED (February 14, 2020): In response to an influx of Bloomberg-sponsored memes on Instagram, a spokesman for Instagram’s parent company Facebook revealed that it is requiring that influencers promoting political campaigns “disclose any paid partnerships through [Instagram’s] branded content tools,” which is interesting, as in the past the FTC has explicitly stated that it is not convinced that social media platforms’ branded content disclosure tools are valid forms of disclosure.

According to the Associated Press, “The change involves what Facebook calls ‘branded content’ — sponsored items posted by ordinary users who are typically paid by companies or organizations. Advertisers pay the influential users directly to post about their brand.”

“Until Friday, Facebook tried to deter the use of paid posts through influential users as political messages. Specifically, it barred political campaigns from using a tool designed to help advertisers run branded posts on Facebook and Instagram, which is owned by Facebook,” per the AP. “Friday’s rule change will now allow campaigns in the U.S. to use this tool, provided they’ve been authorized by Facebook to run political ads and disclose who paid for the sponsored posts.”

*This article was initially posted on February 10, 2020.