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Clear and conspicuous is a phrase the Federal Trade Commission has written out more than once, and the versions are not identical. One sits in the Endorsement Guides, which the Commission calls administrative interpretations providing the basis for voluntary compliance.¹ Another sits in a trade regulation rule that took effect on October 21, 2024.² That rule's disclosure requirements reach only a company's own insiders, so a policy addressed to everyone who posts about the company is drafting to two standards at once.³

The rule's disclosure duties stop at the company's own people

The Commission answers the scope question in its own guidance on the rule. Asked whether the rule covers when and how influencers should disclose their relationship to a brand, it answers: "No. The rule's only disclosure requirements relate to certain situations involving company insiders."³ It adds that failing to disclose such a relationship could still violate the FTC Act.³

Those insider duties sit in 465.5. An officer or manager writing a review or testimonial about the business needs a clear and conspicuous disclosure of that material relationship.⁴ The section carves out the case of a testimonial where the relationship is otherwise clear to the audience.⁴ A business disseminating a testimonial given by its officers, managers, employees, or agents needs that disclosure too.⁴ Two conditions apply together: the relationship is not otherwise clear to the audience, and the business knew or should have known of it.⁴ Officers and managers are also barred from soliciting reviews from immediate relatives, employees, or agents in the circumstances the section sets out, and a generalized solicitation to purchasers at large falls outside that bar.⁴

Where an outside creator's duty comes from instead

For a paid creator who is not an insider, the disclosure obligation runs through the Endorsement Guides and section 5. Section 255.5 requires disclosure of a connection between endorser and seller that might materially affect the weight or credibility of the endorsement and that the audience does not reasonably expect.⁵ What counts includes free or discounted products unrelated to the endorsed product, early access, and the possibility of being paid or of winning a prize.⁵

Two sentences in that section settle two different questions. One fixes when it is owed, saying a material connection needs disclosing "when a significant minority of the audience for an endorsement does not understand or expect the connection."⁵ The other fixes how much it must say. The disclosure "does not require the complete details of the connection, but it must clearly communicate the nature of the connection sufficiently for consumers to evaluate its significance."⁵

The rule classifies the post even where it sets no disclosure duty for the creator. The Commission's guidance treats a hired influencer's post touting a product as a celebrity testimonial rather than a review.³ Under 465.2(a) it is a violation for a business to write, create, or sell a celebrity testimonial that materially misrepresents any of three things.⁶ Those are that the testimonialist exists, that the testimonialist used or had experience with the product, and what that experience was.⁶

One phrase, two definitions, four differences

Section 255.0(f) states the definition in a single unnumbered paragraph, and its operative clauses use should. A visual disclosure "should stand out from any accompanying text or other visual elements so that it is easily noticed, read, and understood."¹ In an interactive electronic medium the disclosure "should be unavoidable."¹ The Guides describe themselves at 255.0(a) as providing the basis for voluntary compliance.¹

Section 465.1(c) states it in eight numbered subparagraphs, and its verb is must.⁷ Four requirements appear there that the Guides do not carry, and subparagraph (c)(5) holds two of them. Under (c)(4), a disclosure "is not clear and conspicuous if a consumer must take any action, such as clicking on a hyperlink or hovering over an icon, to see it."⁷ Under (c)(5), it "must use diction and syntax understandable to ordinary consumers and must appear in each language in which the representation that requires the disclosure appears."⁷ Under (c)(6), it must comply "in each medium through which it is received, including all electronic devices and face-to-face communications."⁷

One difference runs in the other direction. The Guides carry a sentence the rule does not, that a disclosure presented simultaneously in both the visual and audible portions of a communication is more likely to be clear and conspicuous.¹ The audience clause differs in its trigger as well as its illustration. The Guides reach the case where "an endorsement targets a specific audience," illustrated with older adults.¹ The rule reaches the case where "the representation or sales practice targets a specific audience," illustrated with "children, the elderly, or the terminally ill."⁷

What a campaign policy is describing

The advertiser and its counsel decide whether a connection is material, whether a claim is substantiated, and whether a given post crosses into a violation. We answer none of the three. Documents a client sends are private and stay private.

The drafting is ours to read. A single policy paragraph addressing everyone who posts about the company is addressing two populations, and the Commission's guidance puts only one of them inside the rule. A staff policy that reproduces the wording of 255.0(f) has reproduced a definition the Commission calls an administrative interpretation, where 465.1(c) is the definition that applies to the duty at 465.5. A creator brief describing where a caption sits is describing placement, which both texts address in different words and neither leaves to the platform.