Consumer Protection, Voter Deception: The Double Standard of Social Media Influencer Disclaimer Requirements

Social Media Influencers have become immensely important tools for marketing. For years, advertisers have shelled out top dollar to influencers to endorse and feature their products. [1] The reason is rooted in trust. Influencers cultivate a niche, personal, and parasocial connection with their followers, making their endorsements feel more like an authentic recommendation from a friend rather than a traditional corporate advertisement. [2] Seeing the success of influencer marketing for consumer advertising, political actors have begun using a similar strategy: hiring influencers to endorse a candidate and their policies. [3] However, unlike consumer influencers, who are required by the Federal Trade Commission (FTC) to disclose any “material connection” when promoting consumer goods, those who are paid to promote or create political content are not required by the Federal Election Commission (FEC) to disclose payments or perks from candidates, campaigns, or SuperPACs. [4] [5]

This is immensely problematic for the American electorate. Without properly disclaiming to audiences financial or other compensation an influencer may have received, American voters can be unknowingly manipulated into voting for candidates they may not actually agree with—simply because of an influencer's endorsement or content. In fact, 46% of American social media users have changed their political opinion based on an influencer's content. [6] 

In the absence of disclaimers, any compensated influencer content—known as sponsored content—promoting a candidate, is practically indistinguishable from the influencer’s genuine beliefs. This deception directly undermines the integrity of the electoral process by depriving voters of the information necessary to evaluate the source and potential bias of the message. While campaign finance jurisprudence consistently upholds disclaimer requirements as being vital to the electorate’s informational interest, the FEC’s narrowly tailored disclaimer requirements fail to encompass paid political influencer content—a stark deviation from the Federal Trade Commission's comprehensive consumer protection standards—thereby creating an irreconcilable regulatory conflict that contradicts both congressional intention and judicial affirmation in the objective of providing voters transparency.

Disclaimers are one of the most important regulatory tools to ensure audiences are informed about the source of an advertisement. In the context of campaign finance, a disclaimer “refers to an attribution statement that appears on a campaign-related communication.” [7] This attribution provides transparency, essential in informing the electorate of who paid for an advertisement, allowing a voter to evaluate the source credibility of the information they are being presented. [8] Disclaimers are, thus, the key mechanism which allows viewers—and in this case, voters—to differentiate a sponsored post from a genuine endorsement. 

Despite numerous legal challenges over the past 50 years, federal courts have consistently upheld the constitutionality of disclaimer requirements, citing their importance in providing the American electorate with critical information about the source of political messaging. In Buckley v. Valeo (1976), the Supreme Court rejected the appellants' arguments that the Federal Election Campaign Act (FECA)’s disclosure requirements violated their rights to free association and equal protection. [9] These disclosure requirements required political campaigns to disclose the identity and dollar amount of contributors and to report all independent expenditures more than $100 dollars. [10] In a per curiam opinion, the Court ruled that the Act’s disclosure provisions were justified by a governmental interest in helping voters evaluate candidates by providing them with “information as to where political campaign money comes from.” [11] The Court also pointed out that disclosure “allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches.” [12] While not explicitly mentioning disclaimers, Buckley affirmed FECA’s disclosure and reporting requirements, which would set the foundation for the protection of modern disclaimer requirements. 

In 2002, Congress passed the Bipartisan Campaign Reform Act (BCRA). [13] BCRA amended FECA and enacted Section 311, which introduced new disclaimer requirements for political advertising. These requirements expanded disclaimers to encompass “public communications,” mandating clear and conspicuous disclaimers of the payor. [14] Broadcast communications now required candidates to include audio and visual approval statements, disclaiming that they had “approved” the content of the advertisement. [15] In McConnell v. FEC (2003), these requirements were challenged on grounds that it violated the appellants’ First Amendment rights to free speech and free association. [16] The Supreme Court, however, upheld the constitutionality of Section 311 of BCRA on similar grounds to Buckley, concluding the disclaimers required under the act bore a “significant governmental interest of shedding the light of publicity on campaign financing.” [17] 

In Citizens United v. FEC (2010), the disclaimer requirements outlined in Section 311 of BCRA were once again challenged on the grounds it suppressed the appellant’s ability to speak, violating their First Amendment rights. [18] While the Court admitted that disclaimer requirements may “burden the ability to speak,” they simultaneously held that they “do not prevent anyone from speaking,” upholding Section 311. [19] The Court also pointed to McConnell, holding that disclaimer requirements required by the BCRA “provide the electorate with information” and “ensure the voters are fully informed.” [20] 

The robust line of jurisprudence stretching over 50 years has cemented the constitutionality of disclaimer requirements on political speech. This settled law, however, now collides with the rapidly evolving modern creator economy. Congressional intention and judicial affirmation has not translated into a unified digital-age policy. This results in the current regulatory paradigm, defined by a deep and consequential gap, implicitly separating influencers into two distinct categories: Consumer and Political. These categories are regulated by two separate federal agencies, the FTC and the FEC, respectively, which have sharply contrasting rules regarding sponsored content. 

The FTC regulates consumer influencers and requires “clear and conspicuous” disclaimers on all content in which there is a “material connection” between the endorser (the influencer) and the advertiser of a good/service which may materially affect the weight or credibility of the endorsement. [21] The FTC doesn’t limit this material connection to monetary compensation—it also applies to any other benefits the influencer may receive from an advertiser. [22] The FEC, on the other hand, does not require any type of disclaimers except on “traditional media” such as TV, newspapers, and magazines, which the FEC defines as “public communications.” [23] While the FEC does have more robust disclaimer requirements for “internet public communications,” mandating very specific requirements for what the disclaimer must look like, these rules only apply to content which is “placed or promoted for a fee on another person's website, digital device, application, or advertising platform.” [24] Crucially, these requirements do not apply to individuals or organizations who are paid to create and/or promote these public communications on their own accounts. [25]

This discrepancy showcases a significant regulatory gap. The current framework creates a jurisdictional mismatch, where the agency who is better equipped to regulate the form of advertising (the FTC) is sidelined by the agency which regulates the content (the FEC). 

The primary objection to strengthening the FEC’s digital disclaimer regime rests on a faulty premise regarding current disclosure methods. When the FEC sought comment on revising its disclaimer rules to require political bloggers and influencers to disclose all payments, some commenters opposed the rule, asserting that the payment details are already publicly available in the campaign's official FEC disclosure reports, making the new requirement redundant. [26] However, this is factually incorrect. Disclosing influencer payments in a campaign or political committee’s FEC disclosure report is not a viable substitute for an on-ad disclaimer, because campaigns, parties, and other organizations typically pay an influencer marketing agency who will then pay the influencer. Consequently, the influencer being paid will not be identified in the FEC disclosure, and is usually not publicly identified as being affiliated with the influencer marketing agency, resulting in the expenditure remaining completely hidden from public scrutiny." [27]

As a result, consumer influencers with trusting audiences, come election season, are being paid to create and promote election advertisements to these same audiences, appearing as if it is their authentic opinion. Due to the nature of the content being political, it falls under the jurisdiction of the FEC. Yet, the FEC’s regulations designed for traditional media are poorly suited to the new digital strategies employed by influencers across the industry. 

This creates a regulatory arbitrage. Campaigns are not merely utilizing influencer marketing to avoid transparency, they are capitalizing on a medium that is far more effective than traditional media at shaping political sentiment, especially among younger voters. [28] By exploiting this loophole, political actors gain access to the high-trust, parasocial persuasion of influencers to disseminate seemingly organic content, completely omitting the very disclaimers that would be required for a consumer endorsement but are not required for a political one.

While states such as California have passed their own regulations requiring disclaimers for paid political influencer advertising, the rules only apply to content which may influence only California elections [29] Organizations such as the non-partisan legal organization Campaign Legal Center have petitioned the FEC to initiate a federal rulemaking, closing the regulatory gap. [30] However, these measures are unlikely to succeed, as the FEC currently lacks and most likely will continue to lack a quorum, leaving them able to “do little to nothing.” [31] In lieu of any FEC intervention, the most viable solution is for Congress and the President to pass legislation reforming the current FEC disclaimer regime. 

Edited by Joaquin Recinos and Ashley Zhou

[1] Hongjie Liu, “Strategies and Effectiveness Analysis of Modern Marketing Methods: A Comparative Study Based on Influencer Marketing and Traditional Advertising Marketing,” SHS Web of Conferences 207 (2024), 4 https://doi.org/10.1051/shsconf/202420702008.

[2] Jihye Kim and Minseong Kim, “Rise of Social Media Influencers as a New Marketing Channel: Focusing on the Roles of Psychological Well-Being and Perceived Social Responsibility among Consumers,” International Journal of Environmental Research and Public Health 19, no. 4 (2022): 3, https://doi.org/10.3390/ijerph19042362.

[3] Ken Bensinger, “Joe Biden Wants to Go Viral. It’s Not Easy.,” The New York Times, June 14, 2024,https://www.nytimes.com/2024/06/14/us/politics/joe-biden-donald-trump-2024-campaign-tiktok.html

[4] Federal Trade Commission, Disclosures 101 for Social Media Influencers, November 5, 2019,https://www.ftc.gov/system/files/documents/plain-language/1001a-influencer-guide-508_1.pdf, 2. 

[5] Ellen L. Weintraub and Shana M. Broussard, Statement Of Commissioners Ellen L. Weintraub And Shana M. Broussard Regarding The Commission’s Adoption Of Final Rules In Reg 2013-01 (Technological Modernization), 2023.

[6] IZEA, “Influencers & The 2024 Election,” December 2024.

[7] L Paige Whitaker, Campaign Finance Law: Disclosure and Disclaimer Requirements for Political Campaign Advertising, December 30, 2019, 1.

[8] Miriam J. Metzger and Andrew J. Flanagin, “Credibility and Trust of Information in Online Environments: The Use of Cognitive Heuristics,” Journal of Pragmatics, vol. 59 (2013): 210–20, https://doi.org/10.1016/j.pragma.2013.07.012.

[9] Buckley v. Valeo 424 U.S. 1 (1976).

[10] Buckley v. Valeo 424 U.S. 1 (1976).

[11] Buckley v. Valeo 424 U.S. 1 (1976).

[12] Buckley v. Valeo 424 U.S. 1 (1976).

[13] The Bipartisan Campaign Reform Act, Pub. L. No. 107–155, 116 Stat. 81 (2002). 

[14] The Bipartisan Campaign Reform Act, Pub. L. No. 107–155, 116 Stat. 81 (2002)

[15] The Bipartisan Campaign Reform Act, Pub. L. No. 107–155, 116 Stat. 81 (2002). 

[16] McConnell et al. v. FEC, 540 U.S. 93 (2003).

[17] McConnell et al. v. FEC, 540 U.S. 93 (2003).

[18] Citizens United v. FEC, 558 U.S. 310, (2010).

[19] Citizens United, 558 U.S. 310 (2010).

[20] Citizens United, 558 U.S. 310 (2010).

[21] 16 C.F.R. § 255.5 (2023).

[22] Federal Trade Commission, Disclosures 101 for Social Media Influencers, 2.

[23] 11 C.F.R. § 100.26 (2024). 

[24] 11 C.F.R. § 100.26 (2024). 

[25] Dickerson, Statement of Commissioner Allen Dickerson Regarding the Commission’s Adoption of Final Rules in REG 2013-01 (Technological Modernization).

[26] Campaign Legal Center, “Petition for Rulemaking to Require Disclaimers on Paid Political Communications Created or Promoted by Influencers” (2025), 7 .

[27] Campaign Legal Center, “Petition for Rulemaking” (2025), 8.

[28] ABC News, “How Social Media Influencers Are Playing a Role In The Presidential Election,” Youtube, 0:08,March 19, 2024, https://www.youtube.com/watch?v=C1bZyocQNEE.

[29] California Govt. Code § 84513 (2024).

[30] Campaign Legal Center, “Petition for Rulemaking” (2025), 1.

[31] Ashley Lopez, “The Federal Election Commission Is down to 2 Members. So Its Work Is at a Standstill,” NPR, October 4, 2025.