According to a recent article in The Fashion Law, the Federal Trade Commission is attempting to regulate fashion bloggers by arguing that their online sponsorships run afoul of Section 5 of the Federal Trade Commission Act, which prohibits deceptive conduct.

The FTC is apparently concerned that popular fashion bloggers who are paid to promote product lines “deceive” a “significant minority” of viewers by failing to clearly identify the content of their blog posts as sponsored, for example, by failing to prominently use such hashtags as #sponsored or #ad.

(Photo: Instagram/songofstyle)

(Photo: Instagram/songofstyle)

The FTC has taken the position that such conduct merits prosecution of the companies that pay the bloggers to promote their lines. (According to “three conditions must be met in order for particular conduct to be deemed “deceptive”:

  • The conduct must involve a representation, omission, or practice that misleads or is likely to mislead the consumer.
  • A consumer’s interpretation of the representation, omission, or practice is considered reasonable under the circumstances.
  • The misleading representation, omission, or practice is material.

The unattributed sponsorship of a fashion blog post hardly seems “likely to mislead the consumer.” Few millennials, who are the primary audience of these blogs, are so credulous as to believe that an Instagram personality with 1 million followers is not sponsored by a major brand or two.

Even in the event that some consumers are so mystified, the third criterion that the deceptive conduct must be “material”to consumer decision-making remains unsatisfied. Does it seriously change a viewer’s choices in the marketplace, when the viewer does not know whether the lovely makeup display she is viewing on her favorite fashion blog was also sponsored by a brand? Sponsored bloggers take artistic pictures of makeup or stylish outfits from their brand sponsor.

Those following these popular users sometimes choose to imitate the style of their favorite fashion bloggers. Identification with the image conveyed by the popular blogger, not whether or not a particular blogger’s style is sponsored, would appear central to the followers’ style decision.

In the past the FTC was able to justify cracking down on celebrity endorsements of brands because these advertisements made fraudulent claims about their products. Thus, for example, promotions for weight loss pills that make false claims were prosecuted according to the standards given by Section 5 of the Federal Trade Commission Act. In contrast, the fashion bloggers do not put forth claims that are false.

What, though, is the problem with the FTC requiring bloggers to convey specific information about sponsorships? The problem with making “#ad” obligatory on sponsored bloggers is that ads have a negative connotation for the millennial generation.

True or not, bloggers should not be burdened with having to make this disclosure. It is comparable to forcing a radio personality to disclose he is ugly. The information is generally assumed, but immaterial for the listeners choosing a radio station.

In short, association with an online personality’s style preferences is something that many millennials participate in for their own personal style improvement. Regulating it as a source of deception under Section 5 seems to be inflicting undue restraints with little regard for the circumstances of the fashion blogging industry, or even of the standards that apply to Section 5 of the Federal Trade Commission Act.