This week, Instagram meme accounts like @fuckjerry and @tank.sinatra posted sponsored ads for former New York mayor Michael Bloomberg’s presidential campaign – the first campaign to use this sort of paid influencer marketing strategy. On Friday, Facebook told the Verge and BuzzFeed News that it would not be regulating these ads the same way it does political ads on Facebook and Instagram. For example, the ads won’t be added to the Facebook Ad Library — the transparency tool that allows anyone to see how much money a politician, business, or group is spending on Facebook ads — unless the candidate or influencer were to pay Facebook to boost the post.

Facebook’s political advertising policies, which fall into a gray area of federal regulations, have already come under intense scrutiny (they have decided not to fact-check political ads), and after foreign manipulation and inauthentic behavior in the 2016 US presidential election, it is still trying to convince the public that it’s not going to fuck this up this time. But allowing political candidates to use influencer marketing on Instagram requires a lot of trust in the way that influencer marketing works — and that system has always been completely broken.

Influencer marketing relies on confusing the average user — that’s what makes it effective. The clearest version is when an influencer puts #ad or #sponsored in the caption, which is very easy to miss, but there are a billion less obvious variations.

Sometimes an influencer will simply tag a brand in the photo (does this mean they were paid to post? Or given a free gift? Or just like the brand?). Sometimes they’ll write flowery language about “partnering” with a brand or give out a discount code with their name on it. Or maybe they’ll just say “thanks @BRAND.” Or maybe nothing at all!!!

In theory, there ARE rules. The Federal Trade Commission, the government agency that regulates advertising, has guidelines for disclosing social media ads. The rules say that any material relationship to a brand must be disclosed. This means an influencer needs to say if they have been given a big wad of cash to do a post, but also if a makeup company sent them a free lipstick and they posted about it — even if the gift was unsolicited. It also needs to be disclosed if an influencer has a financial stake in a brand (DJ Khaled and Cîroc, for example), or even if they have a spouse or family member who does.

And there are very specific rules for how to disclose that relationship in an ad. It must say #ad or #sponsored (#sp doesn’t cut it), and that disclosure must appear in the first three lines of an Instagram caption, before the caption text gets cut off in the feed.

But enforcement has been pretty hands-off. Over the years, the FTC has taken action against brands and advertising agencies, but never individuals putting up posts. The closest any influencer has gotten to being punished came in 2017 when, prompted by the advocacy group Truth in Advertising, the FTC sent polite “educational letters” to remind a handful of celebrities and influencers how to properly disclose an ad. When several of those celebrities like Amber Rose and Lindsay Lohan continued to do undisclosed Instagram ads, they got second, slightly more chastising letters asking them to tell the FTC whether or not the posts were ads. No influencer, not even a Kardashian, has ever faced official action or penalty by the FTC.

