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INTRODUCTION

Social media has transformed how brands advertise and how audiences consume promotional content. Influencers now play a central role in shaping consumer behavior, but with that influence comes legal accountability. Both the United States and the United Kingdom have developed frameworks to ensure transparency in advertising and prevent deceptive marketing practices.

This article compares how each country regulates influencer marketing, outlining what qualifies as advertising, what influencers and brands must disclose, and the legal consequences of failing to comply.

ADVERTISING LAW IN THE UNITED STATES

1) WHAT QUALIFIES AS ADVERTISING?

There is no single statutory definition of “advertising” in the United States. Instead, advertising practices are primarily governed through federal statutes and regulations enforced by the Federal Trade Commission (FTC).

The FTC defines an endorsement as a type of advertisement that “consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser.” This broad definition allows the FTC to regulate influencer content that promotes goods or services while appearing to express personal opinions.

2) INFLUENCER PRACTICES CONSIDERED ADVERTISING

Influencer content is generally treated as advertising when there is a material connection between the influencer and the brand being promoted. Common examples include:

• A post that refers to a third party's product or service when the influencer has any financial or commercial relationship with that third party

• Tagging a brand or providing discount codes and affiliate links

• Native advertising, meaning content that mimics organic posts on a platform but is actually promotional in nature

• Posting content in exchange for entry into a giveaway or prize promotion

Any of these can qualify as advertising under FTC guidance.

3) LEGAL OBLIGATIONS AND DISCLOSURE REQUIREMENTS

Influencers must make it obvious when a relationship exists with the brand they are endorsing. The FTC requires that:

• The advertisement must be conspicuously disclosed so that a reasonable consumer would not miss the connection

• Disclosures must appear within the endorsement message, not buried among hashtags or hyperlinks

• The disclosure should appear on-screen or in the caption long enough for the average viewer to notice and understand it

• The disclosure language must be clear and easily understandable (e.g., “Ad,” “Paid Partnership,” “Sponsored”)

In addition, influencers cannot make claims about a product or service that they cannot substantiate with reliable proof. Any statement must reflect typical use and be truthful.

Violations of these rules are treated as deceptive advertising under Section 5 of the FTC Act.

4) LEGAL CONSEQUENCES FOR INFLUENCERS AND BRANDS

Failure to comply can lead to significant consequences for both influencers and brands:

• Influencers may face demand letters or unfair-competition claims seeking injunctions, and they can be targeted in consumer class actions.

• Brands and advertising companies may face liability for disseminating or supervising misleading endorsements. The FTC can also pursue enforcement actions and require corrective measures.

The principle is clear: both the influencer and the sponsoring company are responsible for ensuring that promotional content is transparent and truthful.

ADVERTISING LAW IN THE UNITED KINGDOM

1) WHAT QUALIFIES AS ADVERTISING?

In the United Kingdom, influencer marketing falls under the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the “CAP Code”), enforced by the Advertising Standards Authority (ASA).

The CAP Code defines several forms of advertising:

• Ad space online: any paid placement, such as banners or pop-ups

• Directly connected content: any online material directly linked to the sale of a product or service on a company's website

• Advertorials: features, announcements, or promotions created in exchange for payment or other benefit

Whether a particular post qualifies as advertising often depends on payment and editorial control, that is, whether the brand had control over what was said or shown.

2) INFLUENCER PRACTICES CONSIDERED ADVERTISING

Under the CAP Code, influencer activities typically count as advertising when:

• The influencer displays or promotes products from their own business across websites or social media

• The influencer provides a discount code or link that rewards them for each sale

If an influencer receives free products, compensation, or direction from the brand, the ASA will likely consider the post to be an advertisement.

3) DISCLOSURE AND LABELLING OBLIGATIONS

The ASA requires all marketing communications to be identifiable as such. This means consumers must be able to recognize advertising before they interact with it.

Key obligations include:

• Disclosure of material relationships between influencers and brands

• Accurate product information, ensuring consumers are not misled about quality, function, or performance

• Visible labeling requirements, which vary by platform (YouTube, Instagram, TikTok, Facebook, X, Pinterest, etc.)

Disclosures must be:

• Upfront: visible before a viewer clicks, watches, or engages with the content

• Prominent: easy to notice, not hidden in a long list of hashtags or written in faint text

When advertisements involve or target children, labeling must be especially clear, large, colorful, and timed to appear at the start of the content.

4) LEGAL CONSEQUENCES FOR INFLUENCERS AND BRANDS 

The ASA can:

• Require the withdrawal or amendment of offending ads

• Publish public rulings identifying both the influencer and the brand, potentially harming their reputations

The ASA has previously issued warning letters to high-profile influencers, prompting many to change their advertising practices.

COMPARATIVE ANALYSIS - UNITED STATES VS. UNITED KINGDOM

While both systems aim to ensure truthfulness and transparency, their enforcement styles differ significantly.

• United States: The approach is principle-based, focusing on whether an endorsement is likely to mislead consumers and whether material connections are disclosed. The FTC offers flexible but enforceable guidance, giving companies discretion so long as disclosures are clear and accurate.

• United Kingdom: The system is rule-based, relying on the detailed and prescriptive CAP Code. It provides specific labeling standards and examples of acceptable wording and placement, leaving less interpretive flexibility.

The result is that the U.K. tends to take a stricter and more codified stance, while the U.S. emphasizes general principles of fairness and consumer transparency.

CONTACT A CALIFORNIA SOCIAL MEDIA AND ADVERTISING LAW ATTORNEY

Since 2004, Vondran Legal® has been a trusted leader in copyright, trademark, and advertising law across the United States. The firm has handled over one thousand IP and marketing-related matters, including influencer and brand agreements, FTC compliance reviews, DMCA disputes, and online enforcement actions involving YouTube, Instagram, TikTok, Shopify, Amazon, and other digital platforms.

If you are an influencer, brand, or agency seeking guidance on disclosure requirements, endorsement deals, or FTC and ASA compliance, contact Vondran Legal® for a no-cost, confidential consultation.