My Thoughts on the FTC Disclosure Guidelines for Social Media Influencers (Specifically, Tarot Content Creators)

Random old photo to accompany the commentary. I’m holding the Tarot of the Holy Light by Christine Payne-Towler, which at some point long, long ago I received for free. Do I need to disclose that?

Psst… I have a “TL;DR Short Summary for the Not-Readers” that summarizes this otherwise very long blog post. So if you don’t have the time or you’re only a little bit interested and not that interested, then scroll all the way down to the end for the TL;DR Short Summary.

I’m reviving and sharing a blog post I drafted in 2019 that has sat in my WordPress saved file for the last 3+ years. It’s about FTC-issued disclosure guidelines (“Rules”) for social media influencers, and key takeaways to glean from the Rules if you’re creating content in the Mind, Body, Spirit spheres. I never got around to finishing and posting that 2019 draft, back when the FTC disclosure guidelines first gained traction, but I think now is a good time to reopen the discussion.

What’s of note to me is how the legal minds who are often the ones drafting these Rules seem to be people who have no personal experiences or insights into the communities they’re drafting the guidelines for. Even when they employ subject matter experts, those SMEs tend to be biased, or come from a very particularized segment of the community, and therefore do not fairly represent all interested parties.

There’s consumer protection, which nobody’s against. But then there’s untenable rules of compliance that aren’t clear enough for practical application by the people the rules are demanding compliance from.

By the way, none of this is my legal opinion, and do not rely on it as such. All of this is personal commentary in reaction to the FTC disclosure guidelines as someone who considers herself a deck reviewer but who could potentially be categorized as an “influencer.”

I first noticed in the 2010s that the line between old-fashioned word-of-mouth among friends and commercial advertising were really starting to blur. At least among the earliest tarot people online, they would make videos about tarot showing the cards and not necessarily mention which deck they were using, because that wasn’t the point.

But then the comments section would get flooded with the same question over and over: can you tell us what deck that is and where can we get it? So then preemptively, tarot content creators would cite the deck name and give a link to the publisher’s website so they wouldn’t get the flood of repeated questions.

Of course, deck publishers and indie creators took note of the potential here and started gifting these content creators free (“complimentary”) review decks.

Common Review Practices in the Tarotsphere

Most of us can agree that the bright line point for disclosure is a financially compensated endorsement. If there is a contract and the content creator is getting financially compensated in any way whatsoever, be that a lump sum, per post, or affiliate link, then they need to disclose that. That’s an easy peasy identification of “sponsored content” or “advertisement” for compliance purposes.

But that’s not the case in the tarot community (at least to the extent I’m aware of). I’m not paid for any of my reviews, and I don’t know any other tarot content creator in my friends circle who gets paid for doing reviews. I’m not saying it’s not a thing; I’m just saying I don’t know anybody who does it. It’s not a common practice.

Instead, the relationship usually begins with a publisher, be that mass market or indie, spotting a particular content creator who does reviews. They e-mail the content creator and ask, hey, would you be interested in receiving a copy of such-and-such deck for possible review? Here’s a link for more info, and here’s a pdf of the product description.

You go through the info about that deck, and I gotta say — most ethical content creators will only accept decks for review they reasonably believe they will enjoy. If based on the info you’ve read you think you’re not going to enjoy that deck, may I be so bold as to assert that it would be unethical to say yes and receive the free cards. If you want to write a scathing, negative review, go buy the deck yourself with your own money and then post that scathing, negative review.

But if you plan on taking the free review deck, then before you say yes, you better reasonably believe in good faith that it’s a deck you’d like.

This is not to say you can’t or shouldn’t write negative reviews of decks you received for free, no, that’s not the takeaway here. Don’t get it twisted. If you reasonably in good faith believed you’d like the deck, said yes, get it, and then as you studied the cards or used it, realized a list of critical issues the length of your arm, yes, be brutally honest. Based on the information provided, you sincerely thought you’d love the deck, but once you got it in your hands and started working with it, you realized that was not the case. Totally fine.

But if you hate the deck right out of the gates, it’s not the type of deck you’d like, or you know you’re personally biased against that deck’s creator, and out of greedy self-interest and exploitation (yes, I view it as such) you say yes just so you can get the cards for free and not have to pay for it, and then you rip it to shreds in a review, then I don’t think that’s ethical.

Especially if you received the free deck from an indie deck creator. If it’s mass market from a major mainstream publisher, nehhh, I’m more of the shrug-whatever attitude. But if you said yes to receiving a free deck from an independent artist and you knew you weren’t going to like the deck and you knew you were going to rip it to shreds publicly, I’d opine that as unethical.

By the way, I also put the burden of discretion on the deck creator. As deck creators, don’t just send out free review decks to “big names” or based on numbers. Be mindful. Do your due diligence about the content creators and try to get a sense for that creator’s aesthetic point of view, the types of decks they typically like, how they approach reviewing decks, and what they’ve said in the past about your deck’s comparables.

I digress.

The FTC Disclosure Notice

For those who read my deck reviews or book reviews, you may have noticed that quite early on, before this topic even gained public attention, I was already posting FTC disclosure notices with every review I did where I received the deck or book for free. It always appears in the footer of the review like so:

FTC Disclosure: In accordance with Title 16 of the U.S. Code of Federal Regulations Part 255, “Guides Concerning Use of Endorsements and Testimonials in Advertising,” I received this deck and guidebook set from its publisher for prospective review. Everything I’ve said here is sincere and accurately reflects my opinion of the deck.

And oftentimes even as I introduce the media, I’ll talk about how it came to my attention, or how it made it onto my reading table. If the deck creator or author is a friend of mine, I’ll mention it. If an editor sent it to me or it was gifted by someone who said, hey, I want to hear what your thoughts are about this deck and I haven’t seen you review it yet, so I’m sending it to you– I’ll disclose that.

But is that enough?

FTC Disclosure Guidelines

Now let’s talk about the FTC Disclosure Guidelines. Check out this circular published by the US Federal Trade Commission:

Disclosures 101 for Social Media Influencers

Oh, and what constitutes an “influencer”? The specific wording there is: “Do you work with brands to recommend or endorse products?” Where do deck and book reviewers fit in to this framework?

And here are the Rules in full, Part 255 of Title 16:

Guides Concerning Use of Endorsements and Testimonials in Advertising

Here’s another FTC published guide on Use of Endorsements and Testimonials in Advertising.

And The FTC’s Endorsement Guides: What People Are Asking, which attempts to offer even more guidance for endorsers and marketers on how to navigate social media.

According to the FTC, “The issue is – and always has been – whether the audience understands the reviewer’s relationship to the company whose products are being recommended. If the audience understands the relationship, a disclosure isn’t needed.”

Although the guidance then explains that, “On a personal blog, a social networking page, or in similar media, the reader might not realize that the reviewer has a relationship with the company whose products are being recommended,” I disagree. I would argue it’s possibly on a case by case basis, and there are many other factors that could swing the determination in a different direction.

If you’re a content creator, read the linked material in full for yourself, download the PDFs and take notes, read the FAQs, outline the content, and draft yourself an action plan. But in the meantime, I’ll summarize, but also critique, from the perspective of one who wants to try and comply with the rules in earnest.

For starters, the wording is confusing as hell, even when I’m reading it as a lawyer. Maybe especially if I’m reading it as a lawyer.

FTC Rules Only Apply to Endorsements

The FTC disclosure rules apply to endorsements. But what is an “endorsement”? Title 16 of the Code of Federal Regulations, Part 255 endeavors to address that, but I didn’t feel like it answered my question.

“For purposes of this part, an endorsement means any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser.”

The guidelines provide a few examples to help illustrate how to interpret “endorsement,” and they’re somewhat helpful, but I’m still left with questions.

What is an “advertising message” for the purposes of defining “an endorsement”? 42 CFR § 423.2260 points out that what constitutes “advertisement” is “based on the intent and content of the message.”

Based on the intent and content… Great. Not ambiguous at all.

What if I receive a deck in the mail that I did not ask for, but got anyway because my PO box is publicly listed, and I share on social media a photograph of that deck arranged in an actual tarot reading I did for myself. And I write in the caption, look at some of these images, they’re so interesting! And this deck seems to follow so-and-so system and I’m really digging this aspect of the artwork. I love how this deck is reading for me.

On one hand, if I don’t cite the deck and publisher or artist of the deck, there are some potential copyright implications — and that’s a can of worms that has never gotten resolved as to how copyright and fair use laws should apply to publishing tarot card images on social media but whatevs.

On the other hand, if I cite the deck and publisher or artist, now there are these FTC disclosure rules I have to grapple with. And in an effort to comply, how do we assess “intent and content” to define “advertising message” and then how do we interpret that within the context of “an endorsement”?

And then once we’ve determined whether or not it’s “an endorsement,” we are about to get into the host of other if-then rule considerations you need to contend with.

Let’s say I write a glowing positive review of a deck or book, and then the publisher or author cites an excerpt of my review on their advertising material — now that excerpted portion of my review is an endorsement, and whoever is posting the excerpted portion of my review for their advertising and marketing purposes must comply with § 255.

But what about me, the deck reviewer? I didn’t publish the excerpted portion for advertising or marketing purposes. Nor did I write the review intending for or with the objective that the publisher would do such a thing. What rules do I now retroactively have to comply with? (The FTC says “no, but maybe, because it depends.”)

What if I post educational or divinatory content featuring a deck I received for free but was never obligated to do anything with and my intent was never for it to be advertising, but then the publisher of that deck re-posts my post, framing it in a way where the intent is clearly as advertisement but doesn’t reprint my FTC disclosure? Now what? (The FTC says “if it’s not your fault, then it’s not your fault.”)

Also, what if an indie deck creator reads my review but quotes it a bit out of context on their marketing materials and the way they’ve framed it makes it sound like I’m head over heels in love with their deck, when maybe I only liked it, and if you read the full review, you’d know I said I only liked it. Is the FTC telling me that I’m now legally obligated to be the bitch and demand that the indie artist take down the quote? (The FTC says “you probably should say something.”) Yeah that’s really gonna help me make friends among my peers.

FYI these “The FTC says…” are all based on the FAQs.

Who is a “Bona Fide User” for the Purposes of Testimonials?

A “testimonial” is an advertisement representing that the endorser uses the endorsed product. In such cases, per the FTC regulations, the endorser must have been a bona fide user of it at the time the endorsement was given.

Additionally, the advertiser may continue to run the advertisement only for so long as it has good reason to believe that the endorser remains a bona fide user of the product.

That makes sense in most industries, but it’s less clear with a tarot deck. What constitutes a “bona fide user” for you to be able to give a testimonial for a tarot or oracle deck?

Even decks that tarot readers buy themselves — they open the box, go through the cards and exclaim “ooh pretty!” one time, do like a fun deck interview spread, then put the cards back into the box and leave it out on display on a bookshelf for the rest of that deck’s life span… is that person a “bona fide user” for the purposes of legal compliance?

If I receive a review copy and I actually do tarot readings with the deck and I work with the cards, read the guidebook, try out the exercise with the deck in hand, and it’s on my personal reading table for one month, but only one month, then two months later, am I a “bona fide user” when I leave it out on my reading table as a glorified prop?

What if it’s been a fixture on my personal reading table for years and years except I never touch it, like ever? What if it’s lining the bookshelf in my living room and from time to time on occasion I’ll pick it up off the shelves to tinker with? How frequently do I need to “tinker with it” for me to be a “bona fide user”? Where’s the bright line?

After the month is over, I put the cards back in its packaging and tuck it away in a storage box in my attic but my posted review of the deck is still up on my blog. Am I a “bona fide user” to the extent that the advertiser is permitted to continue running the endorsement for marketing purposes? What if in 2015 I post a review endorsing a deck, saying it is my go-to workhorse deck, because it actually is… in 2015. And then in 2018 that deck is collecting dust and I have a new go-to workhorse deck. Per the Rules, do I now need to go back to my 2015 post and update it?

Which is why as a general best practices tip, if you’re creating content online that could designate you a social media influencer, then having some foresight is helpful — be sure to say “right now this is…” or “at the moment of this posting, this deck is my…”, and if you can remember, mention “but of course it’s always subject to change; my tastes are constantly fluctuating from year to year.”

On some level, my gut says to me that demanding this much of an individual blogger with a hobbyist Instagram account is asking too much. It’s not within the bounds of reason.

And what if I comply with all the disclosure rules to the letter at the onset of writing a review (that constitutes an endorsement) on the free deck I received, but then 5 years later when I’m creating tarot educational content I pick that deck off the shelves to use it to demonstrate a tarot reading but forget that it was a free review copy and make no disclosures because it’s been 5 years and I totally forgot. Now what? As a deck reviewer, was I supposed to keep an updated running list of every single item I received for free review or possible endorsement and to check that list every single time before I create tarot educational content?

If I received a tarot book for free to review back in 2012 and I totally followed disclosure rules on the blog post of that review, but then in 2023, literally over a decade later, I create a video on Tarot Tube on my “top five tarot books of all time” (and of course, assuming my picks are sincere and not driven by ulterior motives) and I include that 2012 book without an FTC disclosure notice, am I in trouble?

Also, let’s say I receive a free deck for review and I follow all the FTC disclosure guidelines for that initial review. A year or two later I’m doing public pick-a-card or livestream readings with that deck, and while I’m doing readings someone in the chat asks me what deck that is, and I say oh this!– this is such an amazing deck, omg it’s so good, it’s one of my favorites– Do I need an FTC disclosure then, since I did get the deck for free? The vagueness of the guidelines would lean toward the answer yes, yes you need to disclose. However, if you ask me, common sense would lean toward no, that is absurd. If you are a deck collector with a bunch of decks you received for free, a bunch of decks you received in exchange, decks you got as gifts from friends, and decks you bought yourself, in a few years, are you really going to be able to remember which was which?

By the way, short answer to the last few questions, the FTC doesn’t say that you will for sure be in trouble; it just “recommends” that it’s “probably better” to do full disclosures every time, in every post.

That’s not the same as “mandate” or “required to.” So we are still not getting very clear instructions on what exactly we need to do!

Oh, also, this is more often than not their hobby, not their main bread. It’s a hobby that somehow by fluke became a side hustle because we live in a capitalist society. You don’t have a fleet of employees, producers, and an LLC. You’re just doing this for a few hours on weekends from your dining room with a set-up of props you bought at the dollar store. But the Rules don’t care. You still need to comply.

Confusing Guidance & the Affirmative Opt-in

Also, according to § 255, if an ordinary consumer of tarot decks regularly publishes reviews of the decks they purchase for themselves on their own personal blog, and this attracts the attention of a publisher, and then the publisher reaches out to the consumer to send a deck to the reviewer for free because they see this reviewer as a loyal customer and this is a way to reward loyal customers, then the deck review is not deemed an endorsement.

But if that consumer affirmatively opts in to a network marketing program for periodically receiving products for free for which the consumer/reviewer can post reviews about, then the review of a product received for free through such a program is an endorsement.

Affirmatively opts in… okay, what if the reviewer does not “affirmatively opt in”? What if they’re just going about their own business and because publishers have their mailing address on record, the publishers send them boxes of decks and books without asking in advance, so there really wasn’t any opting in or not opting in. A lot of social media influencers have PO boxes posted, so what if indie artists just send stuff to the influencer’s PO box without requesting that the reviewer “opt in”? Not that the reviewer is complaining; I’m just saying it’s super gray, isn’t it? Even if you want to follow the rules to the letter, how?

And nobody is being deceptive, not even the publishers. By and large the editors have a running shortlist of social media content creators who they know are sincere users of their decks or generally tend to enjoy their books. They already have that creator’s address. They don’t constantly ping the creator for an affirmative “opt in” nor would doing so make any sense, or be efficient. Because the creator has a long history and track record to show what they like and dislike. So the editor already has a general sense of what that content creator might like and dislike. They send a curated box of selected decks and books believing the creator is going to like every one of these selections. Most of the time, they’re spot on. Some of the times they’re not, and the creator picks out negative points in the review.

What is an “honest opinion”?

Oh, and it should already go without saying that at all times, without exception, “Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser.” [§§ 255.2(a) and (b)]

To a certain extent that requirement can be complied with. But also, to a certain extent, it’s impossible due to innate even unconscious biases. I mean, what if an opinion is honest, but it’s biased? Are we going to regulate intentional biases vs. unconscious biases?

On Testimonials: Can’t Talk About Your Experience with a Product If You Haven’t Tried It

So we’ve established that you’ve got to give an honest opinion, which means at the very least, if you thought the product was terrible, you can’t say it’s terrific. Got it.

In addition to that, the FTC says that you cannot give a testimonial for a product if you haven’t tried it. A testimonial is one form of endorsement.

If it’s a book review, how much of the book must you have read before you can give your endorsement? Cover to cover, every single word on every single page? An intelligent methodical skim of the book the way you were taught to do back in your school days?

In the context of a tarot or oracle deck review (or “endorsement” if that’s what it amounts to), what constitutes having “tried it”?

If your deck review gets categorized as a “testimonial,” or it’s excerpted and quoted in a way that then can be characterized as a testimonial, then according to the Rules, you must have “tried it.”

But what does that mean?

If I peruse through the deck art, Fool to King of Pentacles, and then give my feedback, have I “tried it” for the purposes of a compliant testimonial?

How many readings with the cards do I need to do to reasonably be able to say I’ve “tried it”?

These are rhetorical questions. The point I’m trying to make is that, as applied to the tarotsphere and “tarot influencers,” some of these rules aren’t written clearly enough to guide compliance.

Also: “You can’t make claims about a product that would require proof the advertiser doesn’t have.”

For most industries, I understand the guideline and stand behind the rule 100%. The example given is an influencer who makes a claim in a review that a certain body lotion can cure eczema. Unless the company has provided a substantiated basis for that claim, the influencer could be subject to liability for making such a statement, because they don’t have “a reasonable basis for those claims.”

But when you start getting into people’s spiritual practices and religious beliefs around tarot cards, that gets weird real fast. “When I worked with XYZ tarot deck, I met Hekate! She speaks to me through this deck! She made my life better, blessed me with prosperity, and it was all through working with XYZ tarot deck that I’ve now become a Priestess of Hekate.”

Assuming my beliefs are sincere, can I say that?

I mean, now it’s a hot mess and we’re encroaching on First Amendment territory…

Consumer Endorsements; Expert Endorsements

If you’re providing an endorsement as a consumer, then you must comply with §255.2, which covers Consumer Endorsements. If you’re providing an endorsement as an expert, then you must comply with §255.3, which covers Expert Endorsements.

With respect to endorsing a tarot deck or book, I’m not sure whether the distinctions between the two are clear.

Let’s explore one rule in §255.3 of the regulations, on Expert Endorsements. The illustrative example that the Guide provides is not helpful from a tarot industry perspective.

Here’s the illustrative example: A builder, and so someone who would be considered an expert when it comes to exterior house paint, endorses a particular exterior house paint product for its quick drying properties and durability. The manufacturer excerpts the builder’s testimonial in their advertising. Later, the manufacturer of the house paint re-formulates that paint product. Before they can use the builder’s testimonial in advertising, they must reach out to the builder and the builder must try out the re-formulation to determine whether the testimonial still holds.

The illustrative example makes sense to you as a consumer. But try to apply that to the world of tarot decks. Let’s say I write a glowing review of a deck for how faithfully it follows the RWS system. The indie deck creator excerpts a quote from my review and posts it on their website as a testimonial. Then a few years later, the indie deck creator releases a new edition to that same deck with a handful of the card illustrations totally changed. Does that indie deck creator need to reach out to me with full disclosure and get me to see whether my review of it as “faithfully following the RWS system” still stand?

I can argue both sides. Can’t you? On one hand, I guess it makes sense. With these changes to the deck art, is it still “faithful to the RWS system”? Maybe the reviewer might no longer think so. On the other, all this just seems commercially impracticable, especially for a sole proprietor indie deck creator.

The FTC defines an expert endorser as “someone who, as a result of experience, study, or training, possesses knowledge of a particular subject that is superior to that generally acquired by ordinary individuals.” [16 CFR 255.0(e)]

Most of the people ending up as tarot influencers would probably qualify as an expert. But they are also most likely consumers themselves.

Again, the FTC’s illustrative examples make sense on their own, but I don’t know how to apply it to tarot and books on spirituality.

The testimonial for a treatment for baldness from someone who is bald and using it to treat baldness is a consumer endorsement.

The testimonial from a medical doctor who has scientifically vetted the treatment product is an expert endorsement.

Well, duh.

That distinction is not so easy to make in the tarot world. So many of us receiving free decks for review can wear both hats, and not always at the same time. There are some decks that I will have one particular opinion and commentary of as a consumer, but then my opinion and commentary of it as “an expert” would be different from what I’d say as “a consumer.”

As a tarot “expert,” I’m not sure my endorsement would factor in something like cardstock finish, but providing an endorsement as a consumer, I probably would.

Assessment of a tarot deck is entirely subjective, and not the same as assessment of a treatment for baldness from a user of the product vs. a medical doctor.

Yet now, on top of everything else I need to keep track of, I also need to keep clear my disclosures with regard to whether I’m saying something from the perspective of an expert or from the perspective of a consumer?

Undue Burden on Social Media “Influencers”?

Also, more often than not, I get sent a deck, it sits in a pile of decks I’ve been sent for review, and I don’t get around to writing the review until six months later. Then a friend gifts me a deck. I put it in the same pile and forget about it for six months. I go on a shopping spree and buy a haul of decks, and put it in the same pile for six months. Or I do an exchange, where my friend ships me a mystery box full of decks and in return I ship them a mystery box full of decks, and when I receive mine, I stack it with that pile of decks before I’ve even taken down an inventory of what that friend sent me.

And what if I buy a deck because there was a 50% off coupon (available to all, not just exclusive) and the only reason I would have bought that deck is for the 50% off coupon– if it was at full price there would be no way in hell I’d buy it. Do I have to disclose that, especially if, as an influencer, the effect is that whatever I have to say will materially influence people’s purchasing decisions?

I think yeah, I do, at least per how I’m reading the FTC disclosure guidelines, but it would be an honest and understandable mistake if I totally forgot that I bought it at 50% off, especially if I don’t get to the review until six months later. I have so many decks that I will stare at dumbfounded wondering, “I have no idea why or how I have this deck.” And since the Rules do acknowledge that intent matters, does intent matter here?

After the FTC released these guidelines, however, I did feel I needed to get myself more organized and start documenting where decks are sourced from. I have to keep a running Excel sheet of decks received just so I can stay in compliance. And it’s a pain in the ass for someone who isn’t even a big content creator. I’m just this small potatoes blogger posting reviews on my WordPress site and this is the extent of admin I need to do just to be square with the regulations.

Also, sometimes these FTC regulations make for hilariously amusing disclaimers. One of such regulations reads: “You can’t make up claims about a product that would require proof the advertiser doesn’t have – such as scientific proof that a product can treat a health condition.” Well, sure.

So to stay clear and safe on the right side of the legal guidelines, you’ll find Mind, Body, Spirit publishers printing disclaimers that read like they were written for toddlers disclaiming the book contents of any “scientifically-proven” magical spells, or that there is no proof that calling the Morrigan will or can do X and Y. Sigh. I mean, we get it, right? It’s like the warning label on your hairdryer saying do not use the hairdryer while you are submerged in bathwater. It’s just… :: shakes head ::

Note, however, that when you read all the guidance materials in totality, you’ll start to notice that sometimes they say “According to the law you must…” or make it clear something is legally required, and other times it says “we advise that you…”

So, for example, in the issue of a YouTube channel that focuses on hunting, camping, and the outdoors that sometimes does product reviews, a knife manufacturer will constantly send free knives to the YouTube channel, but with zero obligation to talk about any of the knives. Also, the YouTuber says that whether the knives are free doesn’t affect their judgment. Do they need to disclose?

The FTC guidance says “Your viewers may assess your review differently if they knew you got the knife for free, so we advise disclosing that fact.”

It does not say, “Under the law, you must…” and it doesn’t say that not disclosing is a clear violation of the Rules. It is worded as a recommendation. Does that mean it’s optional?

Disclosing “Material Connections”

Let’s also try to make sense of Circular 508, a pdf handbook titled “Disclosures 101 for Social Media Influencers.”

Per the disclosure regulations, if you are creating content on social media, then you must disclose when you have any financial, employment, personal, or family relationship with a brand (i.e., how they are defining “material connections”).

To help guide interpretation of that rule, note that if a brand gives you free or discounted products or other perks and then you mention one of its products, you should make a disclosure even if you weren’t asked to mention that product.

Okay. But how often? It’s like whoever drafted these regulations have no firsthand experiential concept of how unduly burdensome it would be to have to wave the flag of an FTC disclosure every single time the product is featured in every single piece of content even when it’s unrelated to the product itself.

Also, “financial” relationship? A free deck for writing up a full, comprehensive review after careful consideration from working with the deck over some time is “financial” compensation? Oh please. Getting the deck “for free” barely even begins to compensate the reviewer’s time and efforts. It’s all a labor of love. It doesn’t feel like a commercial transaction at all.

But You Decide For Yourself…

And this further confuses the interpretation: Per the FTC, whether you have to disclose something of minimal value, e.g., you’ve received a $1-off coupon, an entry into a contest, or a product that is only worth a few dollars:

“The question you need to ask is whether knowing about that gift or incentive would affect the weight or credibility your readers give to your recommendation. If it could, then it should be disclosed.”

Wait, so… I need to make that determination for myself? But if I decide wrong, I’ll get in trouble?

Yep, says the FTC, which is why it recommends that “it’s always safer to disclose that information.”

See why I say the rules aren’t helpful?

Likewise, the Rules aren’t clear on the distinction between intentional product placement for the purposes of endorsing it vs. you’re creating educational content and feature tarot decks to demonstrate your point and you happen to reach for a tarot deck that you happened to have received for free last year.

Tags and Likes Could Be Endorsements, Too

Or the FTC guideline: “Keep in mind that tags, likes, and similar ways of showing you like a brand or product are endorsements.” On its face that guideline makes sense, but once you get into the practical application of it, it gets messy.

For example, if my friend is an editor at a publishing house and they share a post about a new deck release and I “like” it, that’s an endorsement that requires FTC disclosure but like how?

I now must also, in addition to the “like,” include a written FTC disclosure in compliance with the rules in the comments section? Or is this saying that, going forward, I am not allowed to “like” these sorts of posts?

What if we follow all these rules and I “like” a deck and then three years later I decide for whatever substantiated reason I withdraw my endorsement, do I need to look up that old post from three years ago and un-like the post so as not to leave any confusion with regard to endorsements?

According to the FTC, if you just happen to have a FB or IG account and participate in an online campaign by a brand that asks you to “like” or share for the chance to win something, and you do, then, according to the FTC, this is probably an “endorsement” of that brand’s products or services because it’s part of a sponsored brand campaign, and “probably requires a disclosure.”

Except in the subsequent paragraphs, the FTC acknowledge that there isn’t always an easy way to make your disclosure and – you can read the FAQs for yourself – basically it says about that, “Oh well. Maybe in those cases the Commission won’t take action against you but who knows.” Like in fluffier language, that’s basically what they said.

The “Personal Relationship” as a “Material Connection”

As for “personal” relationship, what are the benchmarks for determination? According to the Guide, “when there is a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed.” [16 CFR 255.5]

On its face I suppose it makes sense. But here’s a question for you. Let’s say, because I’m Asian American, I agree to endorse a deck from an Asian American artist, and post a positive, supportive review of the deck because of our shared ancestral connection and heritage? It’s truthful and honest, there’s nothing deceptive to what I’m saying about the deck, but if we’re being candid with each other, the glowing praise is kinda sorta maybe because I want to support Asian American businesses. Are you saying I am now legally required to disclose that connection, because by FTC’s definition it counts as a “personal” relationship? ::side eye:: You don’t think shared ancestral heritage constitutes “personal”? Collectivist societies of the East would beg to differ.

What’s “personal”? A family connection is personal, says the FTC. A friends connection is personal. Okay. Does a tribal connection qualify as personal thereby triggering disclosure obligations? Could I get FTC guidance on that one?

Some of the compliance regulations make sense once you hear it, but I wonder how many people with individual social media accounts realize these regulations might apply to them.

For example, if your friend or relative owns a restaurant and invites you to eat there for free, on the house, but I mean heck, it’s because it’s your friend or relative, did you know that you still need to disclose that you received the meal for free, if you post an endorsement or recommendation of it on your social media? Because that fact pattern is well within FTC jurisdiction.

And like I said, once you hear it, it makes sense, right? But I don’t think it’s immediately intuitive. Because say I’ve dined for free at my friend’s Chinese restaurant several times, and then I’m at a big party and at the party the conversation turns to Chinese restaurants and I exclaim, “If you like Chinese cuisine, then you must go to my friend’s restaurant… it’s amazing.” isn’t that fairly similar to the social media scenario, except in-person? The FTC isn’t regulating that.

But then if I say the same exact thing to my followers on social media, that’s now suddenly regulated by FTC disclosure rules? The FTC says, “yep!”

The FTC Rules aren’t relative to whether you have 20 followers (similar to a big party) or 200,000. Although, spoiler alert, at the end of this rambling we do see that the FTC says it’s not interested in going after individual bloggers.

Even if the positive recommendation was unsolicited, even if no one asked you to post that endorsement, you did it on your own accord voluntarily and you genuinely believe in the product, if you have a personal connection to that proprietor, that is considered “material” and must be disclosed in that post and done so in a prominent, obvious way.

Employee Disclosure Rules

Some of the guidelines aren’t well-known among the deck publishers with social media presence. For example, according to the FTC, if you’re an editor at a publishing house and your Facebook page already identifies that you’re an editor at a publishing house, you should still include an additional disclosure on any single post where you’re sharing a recommendation or endorsement of your employer’s products. I’m guessing that’s not widely known by tarot people… because it isn’t widely practiced…

Also, editors and publishers participating in online discussion forums who are in effect endorsing their own decks or books must disclose in every single such post that they’re affiliated with the publisher. If they don’t, that’s a violation. Gosh, can I even count the number of times I’ve seen that happen, with no disclosure, and just the assumption that everybody reading the discussion thread knows their affiliation?

You Can’t Assume. But Really? Why Not?

“Don’t assume your followers already know about your brand relationships.” That’s another guideline.

I somewhat agree and I also somewhat disagree.

The FTC itself gives the example of old school book reviews published by magazines and newspapers. They don’t need to disclose that the books they’re reviewing were free review copies because “everyone knows that already, duh,” says the FTC.

Reasonable consumer expectations is a valid factor. And I’d make the argument that the average member of the online tarot community already knows that certain named tarot content creators are receiving their review decks free from the publishers or authors.

I think a very strong case can be made that, for certain established deck reviewers in the community, it’s already assumed that the deck being reviewed was a complimentary review copy sent to the reviewer by the publisher, and it’s only when it was not free, and was purchased, that the reviewer tends to announce that. I’m sure you’ve noticed the trend.

And tarot is so niche that the only people following these tarot content creators are members of the online tarot community. We’re not like the beauty community or tech products review circles where you get your audience from every corner of every interest group.

Nevertheless, FYI, according to the Rules, “Under the law, an act or practice is deceptive if it misleads ‘a significant minority’ of consumers.”

And to be fair, like I said, I somewhat agree and I fully understand and can get behind the rationale for that guideline, too. I’m just saying that for the first initial content created, yes, disclosures make sense.

But to be obligated to post that disclosure every single time for all of perpetuity for years and years after each and every single time that deck graces your content, even if it’s for five seconds….is insanity.

And while the FTC Rules don’t say I must and am required to do that, the FTC Rules do say that “well you probably should…it’s a good idea…we advise that you do.”

To Be FTC-Compliant, Disclosure Must Be “Hard to Miss”

According to the guidelines, when FTC-compliant disclosure is required, you must place it somewhere so prominent that it is “hard to miss.” It also must be “clear and conspicuous.”

And to comply with that, the example that the handbook gives is you have to superimpose a “promotional material” or “product endorsement” disclaimer text on the photographs themselves and on the video footage, not just in the caption box.

Not only that, it must be in a font size that’s easy to read (so, large), and in a shade that stands out in contrast to its background (so, ugly).

What about a video review of a deck that is one hour long and it’s only at the four-minute mark and the thirty-seven minute mark that the influencer discloses that the deck was received from the publisher? Admittedly most of us consumers do not watch the full hour. A lot of us will skip through the hour to look for timestamps covering the sub-topics we’re interested in. In such a case, was the disclosure “hard to miss”?

In such a case, under the FTC’s own logic, it actually makes more reasonable sense for the disclosure to be in the video description box, and yet the FTC says that doesn’t count– it’s got to be in the actual video or on the actual photo itself, because apparently, they, too, think America is stupid and “people don’t read.”

Let’s consider platforms like Instagram. People who curate Instagram feeds on a regular basis care a lot about aesthetics. Asking me to stamp a word mark over my pretty picture with “ENDORSEMENT” when, like — is it even really an endorsement? — violates the very fundamental spirit and ethos of why I curate an Instagram feed and, I can’t even fully explain it, encroaches upon my sense of personal space in such a profound way. =) Like, something in the way my brain is wired would find the addition of those word marks on my pretty pictures sooo abhorrent. =)

The Rules are all about the importance of the consumer experience, but I’m also saying that as a consumer, it would be annoying if I’m constantly being peppered with ENDORSEMENT! ENDORSEMENT! disclaimers blocking my view of the actual tarot cards or diminishing the experience of that content, especially when it’s educational or it’s a pick-a-card reading that I’m interested in. Not to mention, I’m not even sure that it is an “endorsement” as defined.

These platforms also have a word count limit, so to those of us tarot enthusiasts who are verbose and like to write a lot to accompany the picture, what do you do if now you’re required to use one-third of the word count limit on an FTC disclosure?

In the FTC FAQs, they claim, hey, it doesn’t take a lot — just add the disclosure text “Ad:” or “#ad.” See? Just 3 characters!

Except no, because for most tarot “influencers,” it’s not an advertisement! Getting a complimentary review copy of a deck and then sharing a photo of you test-driving the deck does not immediately amount to an “advertisement.”

So even if I were to put up a disclosure notice, I want to be clear and specific. If I write #ad on the photo of the cards, people will think I was paid to post that photo, which I wasn’t! I was not paid but sure, I got the deck for free. That takes more than “3 characters,” buddy.

I hope we can extend some sympathy to “influencers,” especially as that moniker might be applied in the tarotsphere. A lot of the Rules read reasonably as it would pertain to corporate. If you’re operating a fully-formed business organization with a team of trained professionals and doing so for-profit with access to resources, then the consumer protection Rules make sense.

But to Betsy who just happens to love tarot cards, creates content about tarot cards from a makeshift setup in the corner of her home who then gets popular by chance, and is now getting stuff sent to her for free left and right, it’s a little unrealistic to expect Betsy to be savvy to these Rules.

No But Seriously This Time… What is an “Endorsement”?

And who needs to comply with the “hard to miss” #advertisement #sponsored disclaimers?

Any influencer who is posting an advertisement or sponsored content.

And now we are stuck in a loop of circular reasoning because what is an advertisement and what constitutes “sponsored” content?

According to the Rules, an endorsement.

What is an “endorsement”?

Also according to the Rules, an “advertising message” by someone other than the sponsoring advertiser. (We are now using the word to define the word…)

What is an “advertising message”?

Well that’s “based on the intent and content of the message.”

Now let’s say you’re a whole lot smarter than I am and you’ve figured out what all that actually means with regard to an endorsement being an advertisement or sponsored content, if you’re a professional tarot reader who is also a social media “influencer,” do you follow the Expert Endorsement rules or the Consumer Endorsement rules of Part 255 or are you SOL (shit out of luck) and must comply with both sets of regulations?

Even having a law degree isn’t enough. Fully understanding Title 16 of the CFR requires an additional level of subject matter experience. So as someone who happens to have a law degree but doesn’t practice in this particular area of the law, I read Part 255 and am left clamoring with so many unanswered questions.

Every few paragraphs I go back to the first and foremost inquiry, “Okay, but what is an ‘endorsement’?”

The Good News: The FTC Isn’t Going After Individual Bloggers or Individual Endorsers

Fortunately, per the FTC guidance FAQs, most of us in the tarotsphere are safe, even if we’re “influencers,” because generally speaking, the FTC isn’t going after individual bloggers or individual endorsers, unless there is an exceptional circumstance of malfeasance.

The FTC is more focused on advertisers, ad agencies, and PR firms.

If a possible violation of the FTC Act is brought to their attention, the FTC’s focus will be “advertisers or their ad agencies and public relations firms.” Action against an individual endorser will only be taken in certain circumstances, such as “if the endorser has continued to fail to make required disclosures despite warnings.” That is to say in a really bad case scenario, you’ll get a warning, so at that point, just comply with the warning and you should be fine.

Penalty for Violation of the Rules

What’s more, there are no fines for violation of the FTC Act. Instead, law enforcement is empowered to act on determinations of a violation, in which case you would be required to give up the money you received from the violation. That’s the punishment– a clawback of whatever profit you earned as a result of the FTC violation.

Okay… so in cases that would even be pertinent to someone like me, in the worst case scenario, I have to give back the deck I got for free? I mean… fine. I guess.

You can infer a lot about a law’s intentions based on the penalties for violation. Here, I would infer that the target for the Rules is someone breaking bank with abhorrent, exploitative and deceptive endorsement practices.

So in a way, my long-winded thought exploration of all the tarotsphere hypotheticals is a bit for naught. And yet I think it helps to take that winding road of thought, even if the end result is a simple conclusion or no change at all.

TL;DR Short Summary for the Not-Readers

So. If you get a deck for free for possible review and you write a review or post content about that deck that amounts to an endorsement or testimonial in advertising, no matter who you are, whether you are Betsy the blogger or corporate, you need to comply with these FTC disclosure rules.

But the FTC assures us that they aren’t interested in going after Betsy the blogger. Their eye is on PR firms and advertising agencies who are in cohoots with megastar social media influencers.

Plus, if as a deck reviewer or “tarot influencer,” your audience understands your relationship with the publisher whose decks you are recommending, then a disclosure might not be needed. You decide what’s proper. Except if you decide wrong, you could get dinged. So it’s better to play it safe and disclose everything, no matter now di minimis.

Again, even though technically you need to comply with the FTC regulations, you, Betsy Blogger, are not their target.

Nevertheless, if you got something for free as the result of a financial, employment, personal, or family relationship, according to FTC guidance, you must disclose that in each and every single separate posting that amounts to an endorsement or testimonial. And because the Rules are not clear, it reads like they mean forever, for all of perpetuity and every future post ever.

What is an “endorsement” for purposes of FTC compliance? An advertising message that your audience likely believes reflects your opinions, beliefs, findings, or experiences of the publisher’s deck.

What is an “advertising message” for the purposes of understanding what is an endorsement? Well that’s based on the intent and content of the message.

You have to figure out for yourself what qualifies. Except if you decide wrong, you could get dinged. So it’s better to play it safe and disclose everything, all the time, every time, no matter how di minimis, even when you “like” and “heart” a product placement posting where you’ve at some point received that product for free—yep, that would require an FTC compliant disclosure, too. How the heck do you provide a disclosure on someone else’s post where you “like” or “heart”? The FTC isn’t sure, but you’ll figure it out! Go get ‘em, tiger!

Finally, once you’ve determined that an FTC compliant disclosure is required, that disclosure must be clear and conspicuous, and hard to miss.

The penalty for violating the FTC disclosure regulations is a clawback of your earnings as a result of the FTC violation. In the case of us tarot deck reviewers, that’s like, what? Oh, you have to return the deck you got for free. Got it.

These Are Just My Personal Reactions

As I said at the start of this 9,000-word long rambling… these are just my personal reactions, as someone who could potentially be labeled a “tarot influencer” even though I very much dislike that moniker.

I hope that it’s been somewhat insightful to anyone who is running a social media account featuring Mind, Body, Spirit stuff that does get or could potentially be tapped by publishers and indie creators to receive free products for review.

h/t to MixtressRae for sharing on her community posts tab this video by Benn Jordan, “How Influencers Break the Law (me included).”

3 thoughts on “My Thoughts on the FTC Disclosure Guidelines for Social Media Influencers (Specifically, Tarot Content Creators)

  1. hermitsmirror

    The absurd complexity here is laughable. There were actually a number of times I laughed out loud at your informed yet hilariously candid take on this reality (e.g., “I have so many decks that I will stare at dumbfounded wondering, “I have no idea why or how I have this deck.”). Thanks for keeping us informed and reminding us to do our due diligence, even poor Betsy.

    Liked by 1 person

    1. My speculative takeaway is that the Commission *does* want to scare social media influencers into more transparent disclosure practices but in reality, probably isn’t going to go after them, *unless* it’s like… you know… a BIG-big household name level influencer who does some seriously shady stuff.


  2. 8-ball

    Patent law and Tarot: redeveloping the nature of the card. I am a water type; metal cannot hurt water as it is a collective consciousness. I will not be lured into purchases of decks that do not resonate with me. What dose ring true is by opening your heart and mind to an intellectual curiousity is the catalyst for change. There is so much out there in terms of how the body responds and will change as a result of the environment that it would be good idea to find the justice in technological awareness.


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