Influencers Mostly Skip Disclosure – Practical Ecommerce

Neither the U.S. Federal Trade Commission’s regulations nor the E.U.’s core consumer-protection directives use “influencer” (or “creator”) as a legal term, and only one E.U. country has written “influencer” into statute. Yet a massive industry — 26.6 million influencers in the U.S. alone — now exists, with hit-and-miss disclosure about who is being paid by whom to pitch a product or service.

What follows are U.S. and E.U. approaches to regulating influencer marketing.

What’s an ‘Influencer’?

The FTC doesn’t define “influencer.” The operative regulatory term  is “endorser.” Disclosure is triggered by a “material connection” to a seller — payment, free products, discounts, or a family or employment tie. The FTC’s informal consumer guidance uses “influencer,” but that’s plain language for laypeople.

The E.U. regulates “traders.” Nowhere does it refer to “influencers.” The directive states that anyone who frequently engages in commercial endorsement activity online could qualify as a trader, regardless of audience size. France is more specific, defining the term as “anyone who, for payment, mobilizes their notoriety to promote goods, services, or a cause electronically.”

Both the U.S. and the E.U. target the same problem: concealing a paid endorsement is inherently misleading.

The regulatory need shows up in the numbers. In a February 2024 sweep, the European Commission and authorities in 22 member states, plus Norway and Iceland, checked 576 influencers’ posts: 97% contained commercial content, but only 20% disclosed it systematically, and only 36% of those running a commercial activity were registered as traders.

E.U. rules reach further than the U.S.’s: (i) E.U. platforms must give anyone posting content — influencers included — a way to flag a post as an ad and show that flag to everyone, and (ii) mandatory labeling of deepfakes realistic enough to pass as authentic.

Thresholds

Neither the FTC nor the E.U. directives set a minimum dollar amount for disclosure; a free sample and a five-figure engagement trigger the same obligation.

France requires written contracts between an influencer and a sponsor when cash and in-kind value reaches €1,000 ($1,160) net a year.

Germany’s threshold is a tax rule: companies paying a German creator over €1,000 net a year owe a 4.9% levy.

Enforcement

U.S. enforcement — federal and state — is civil: the FTC’s cap is $53,088 per violation, and state class actions seek damages and injunctions, not jail time.

The E.U.’s baseline is also civil: member states can fine cross-border violations at least 4% of a trader’s turnover or €2 million ($2.3 million).

France adds criminal exposure, though Germany’s enforcement is entirely civil, typically cease-and-desist orders and damages.

The FTC’s 2016 settlement with Lord & Taylor remains a foundational case: the retailer paid 50 Instagram influencers and an online publication (Nylon) to post about one dress without requiring disclosure. The posts reached 11.4 million people before the items sold out.

The U.S. Securities and Exchange Commission fined Kim Kardashian $1.26 million in October 2022 over an undisclosed $250,000 crypto-promotion payment. State-level class actions are now a parallel track: Bengoechea v. Shein and Dubreu v. Celsius Holdings, both filed in early 2025, name the brand and its influencers as co-defendants.