The influencer space has quickly snowballed over the last couple of years, and the Federal Trade Commission has been working hard to keep up with the Joneses, so to speak. In a space that is so saturated with influencers, it’s been difficult to regulate and monitor this space. That said, when the FTC comes knocking, you want to make sure you’re all buttoned up.
In our latest Creative Counsel series, we talked with Ashley Brooks, managing partner at the Schroder Brooks Law Firm, an entertainment and advertising law firm, about a few things that should be top of mind when you launch an influencer marketing.
Free doesn’t fly with the FTC
Let’s say your company sent a free product to an influencer with a handwritten note asking them to share the product on social media. They weren’t paid, so this is all good – right? Wrong. If that influencer shares a post on his or her Instagram feed with a “Thanks, y’all” caption, it isn’t readily apparent to viewers that this was a free gift. “Consumers need to understand the relationship between the marketer and the endorser. If you see an influencer posting #item, your decision to purchase that good or service may be affected if you knew that the influencer was being paid to endorse that product or service,” Ashley says. “An influencer must disclose its relationship with the marketer, whether it’s that they have received money or another thing of value such as free product or discounts.”
Choose your hashtags wisely
Social platforms have really started to step up in the influencer marketing space. Instagram rolled out its “Paid Partnership” tag, which helps, but when it comes to influencer marketing campaigns, put yourself in a layman’s shoes. Is it 100% apparent that a post is an ad or a product placement? We marketers know #sp, #partner and other similar hashtags mean this was a paid effort, but a viewer may not. Your influencer needs to be obvious, and they should not bury the disclosure. “A string of hashtags hiding disclosures which are required to be clear and conspicuous, well that’s the opposite of clear and conspicuous,” Ashley says. “The FTC has repeatedly said that consumers should not have to scroll down or press a button to see disclosures.”
Know your responsibilities
The spectrum of influencers is vast and approaching a local mom blogger with a couple thousand followers isn’t the same as approaching a celebrity for a partnership. As you might expect, the span of agreements and contracts varies, too. You’ll want to make sure you or your client is covered by documenting communications with the influencer about disclosures and by establishing clear brand guidelines. As far as contract agreements go, be sure to spell out specific disclosures in writing.
A contract, according to Ashley, is in everyone’s best interests. “A contract allows each party to be accountable to established rules of behavior and to the brand guidelines and gives the brand strong tools by which to enforce and monitor those guidelines,” she says. “The FTC has fined both brands and influencers for non-compliance in this space, so each party is individually responsible for compliance.”
To summarize, when in doubt, think “clear and conspicuous.” An influencer needs to be clear that they’re being compensated for talking about a product or service, and the marketer needs to provide clear guidance as to the communications. One way to make sure everyone is compliant with the FTC is to create a few sample posts that are vetted by legal. Pass those along to the influencer, and make sure the disclosures stay untouched. Ensure that the parties understand their responsibilities and always monitor your influencers.
Ultimately, if you don’t know if you should disclose, you probably should – and you should probably do it twice for good measure.