Podcast – Social Media Advertising and the FTC: Deception and the Architecture of Compliance – Holland & Knight

In this episode of “Clearly Conspicuous,” consumer protection attorney Anthony DiResta breaks down why social media advertising has become a top Federal Trade Commission (FTC) priority for 2026 and how long‑standing consumer protection rules against deception and unfairness apply to today’s influencer-heavy and algorithm-driven marketing. He explains how brands use social platforms to leverage trust, reduce consumer resistance to ads and benefit from algorithmic amplification while increasing legal risk when sponsorships aren’t clearly disclosed or when responsibility is spread across brands, creators, agencies and platforms. Mr. DiResta also outlines the FTC’s expectations for businesses utilizing online advertising, as put forth in its Endorsement Guides. He concludes by highlighting why companies must have a real social media compliance program with policies, training, monitoring and corrective action going into 2026.
Listen to more episodes of Clearly Conspicuous here.
Anthony DiResta: Welcome to another podcast of Clearly Conspicuous. As we’ve [noted] in previous sessions, our goal in these podcasts is to make you succeed in this environment, make you aware of what’s going on with the federal and state consumer protection agencies and give you practical tips for success. As always, it’s a privilege to be with you today.
Today we discuss social media advertising and the FTC: deception, unfairness and the architecture of compliance. Let’s start out with an introduction, folks.
Social media advertising now sits at the center of modern consumer commerce. It is persuasive, personalized, algorithmically amplified and often indistinguishable from organic content. For regulators, especially the Federal Trade Commission, this combination presents a familiar problem in a new technological form: how to protect consumers when persuasion is embodied, implicit and seeable.
The FTC’s core statutory authority has not changed. Section 5 of the FTC Act still prohibits unfair or deceptive acts or practices. What has changed is the environment in which persuasion occurs. Social media collapses the traditional separations between advertising and content, between speaker and marketer and between voluntary influence and commercial inducement.
From the FTC’s perspective, social media is not a “new” category of law — it is just a new factual context in which old doctrines apply with renewed force.
At its core, social media advertising is designed to do three things simultaneously:
Thus, from a regulatory standpoint, these goals are not inherently problematic. But they increase the risk of deception, because consumers may not recognize commercial content as advertising, material connections may be hidden, claims may be implied rather than stated, and responsibility may be diffused among multiple actors.
Understanding FTC scrutiny requires understanding who the FTC believes bears responsibility. The Commission does not accept the premise that liability stops with the speaker.
First, there are the advertisers or the brands. Advertisers are the primary beneficiaries of social media advertising and, therefore, the primary compliance target. The FTC has consistently held that brands are responsible for claims made on their behalf, brands must ensure influencers comply with disclosure requirements, [and] brands cannot outsource compliance to creators or agencies.
Then, there are the influencers and creators. Influencers are treated as endorsers under the FTC Guides. They are not passive users. When they receive payment, free products, discounts, early access or any material benefit, and promote a product, they are engaged in commercial speech subject to disclosure obligations.
Then there are the agencies and the marketing intermediaries. Agencies are increasingly viewed as compliance gatekeepers. When agencies structure campaigns, data scripts or manage influencer relationships, they may face independent exposure.
Finally, there are the platforms. While platforms enjoy certain statutory protections, the FTC has made clear that platform design choices, especially those that facilitate deception, are relevant to an unfair analysis.
Deception is defined as an act or practice where there is a representation, omission or practice that is likely to mislead a reasonable consumer and that it is material. In social media advertising, omission is often the problem: a failure to disclose a material connection, a failure to clarify that content is sponsored or a failure to qualify claims made implicitly through visuals or lifestyle portrayals. The FTC is clear: If a consumer would give less weight to an endorsement if they knew it was paid, that fact must be disclosed clearly and conspicuously.
Then there’s the unfairness problem. Unfairness focuses less on truthfulness and more on structural harm. Does the practice cause substantial consumer injury? Is the injury reasonably avoidable? Is it outweighed by countervailing evidence? So social media practices that exploit cognitive biases, use manipulative design, obscure consumer choice and target vulnerable populations may be unfair even if no single statement is false.
The FTC’s Endorsement Guides apply fully to social media. Key principles include:
The FTC repeatedly focused on [undisclosed] influencer relationships, health and [wellness] claims, financial opportunity claims, youth-targeted marketing and repetition of noncompliant influencer conduct after notice. A key enforcement insight here: Failure to monitor and correct known violations significantly increases liability.
Now let me stop here a second, folks. Hidden in there is a presupposition. The FTC expects every company to have a social media policy. The FTC increasingly evaluates corporate governance, not just outward messaging. A company without a social media policy signals lack of oversight, lack of training [and] lack of internal controls. In enforcement actions, the absence of a policy undermines defenses and supports claims of recklessness and knowing misconduct. So what needs to be inside a social media policy, you ask?
A credible social media policy should include:
From the FTC’s perspective, a policy is not symbolic — it is evidence of a reasonable compliance effort.
The FTC’s position on social media advertising can be summarized simply: If advertising is persuasive because it appears authentic, the law demands transparency.
Social media did not eliminate consumer protection law — it amplified the need for it. Companies that treat compliance as an afterthought invite scrutiny. Companies that embed compliance into design, governance and culture reduce risk and preserve trust.
So stay tuned to further programs as we identify and address the key issues and developments and provide strategies for success. I wish you continued success and a meaningful day. Thank you.
 
Please note that email communications to the firm through this website do not create an attorney-client relationship between you and the firm. Do not send any privileged or confidential information to the firm through this website. Click “accept” below to confirm that you have read and understand this notice.

source