If you have been engaged by a brand or network, you have likely come across a term that says something like “Influencer shall comply with all laws, rules, regulations, and guidelines applicable to Influencer’s performance hereunder.” That clause may strike you as vague, but, since you tend to follow laws and rules regularly (of course), whatever that means won’t be a problem. Right? To be clear, the Federal Trade Commission, the government agency in charge of protecting consumers from deceptive and false advertising, is typically more concerned with brands’ behavior than they are with yours. But by not following certain requirements, you could find yourself in breach of that contract you signed, or even harming your reputation with your readers. Regardless of the legal repercussions, it is in everyone’s best interest – yours, your readers’, the brand’s – for you to understand what is expected of you in participating in a sponsored opportunity.
Endorsements and FTC required disclosures
With a substantial following, you may have the opportunity to publish sponsored content on your blog. In this method of monetization, you create a post or tweet or pin or video about a product or service in exchange for some kind of consideration from the company selling that product or service. That act is an endorsement -- an advertising message made on behalf of a sponsoring advertiser. “Consideration” does not only mean money. If you have received clothes, hotel rooms, gadgets, subscriptions, etc., from the company sponsoring the post, then you have received consideration, and you must disclose this to your readers. The FTC wants to protect consumers, so it wants your readers to have the information they need to be able to decide whether they believe your endorsement was influenced by your receipt of consideration.
The FTC has published guidelines on disclosure requirements in connection with endorsements. While the “Guides Concerning the Use of Endorsements and Testimonials in Advertising” (the “Endorsement Guide”) published in 2009 provided a number of hypothetical examples of how the law should be applied, those examples only reflected scenarios as they were likely to exist in early online sponsored content. In May 2015 the FTC published an updated “What People Are Asking” FAQ-type page (the “Best Practices Update”) that complements the Endorsement Guide and provides a number of 2015-relevant scenarios under which disclosures should be made, and what they should look like.
There is no special wording required by the FTC to effectively make an endorsement disclosure, but it must be clear and conspicuous and in close proximity to the content to which it relates. “This post is sponsored by Company MNOP” or “Company RST gave me this product to try” will suffice. However, a blanket disclosure on your site, such as “Sometimes I write about products I receive from brands” in an “About” page or under “FAQs” is not sufficient. If you write about the product or service more than once, you should make the disclosure each time, because the reader of a blog post about Product Q in June might not have read April’s post about Product Q that contained the disclosure.
Disclosures in tweets are often viewed as a waste of some of the precious 140 characters allowed, and are therefore omitted entirely. But as the Best Practices Guide points out, “Sponsored” or “Promotion” take only 9 characters (10 if you # them). Creative influencers should be able to cleverly convey both an advertiser’s message and the required disclosure in a tweet. “Promotion,” “Sponsored” or “#ad” are the best bets. “#spon” is likely not clear enough because consumers might not understand what that means.
Facebook and Pinterest
The FTC says that advertisers “should not encourage endorsements using features that don’t allow for clear and conspicuous disclosures,” like “liking” on Facebook, and “pinning” on Pinterest. But it doesn’t explicitly discourage this behavior, either. In fact, the Best Practices Guide admits “we don’t know at this time how much stock social network users put into ‘likes’ when deciding to patronize a business, so the failure to disclose that the people giving ‘likes’ received an incentive might not be a problem.” Additional use of these practices over time should lead to more definitive guidance.
The popularity of advertiser-sponsored video content continues to rise on platforms like YouTube and Vine. While you might believe that the audio/visual nature of the medium complicates your ability to disclose, it really doesn’t. You can simply say into the camera something along the lines of “Some of the products I’m going to use in this video were sent to me by their manufacturers.” “This video is sponsored by Company HIJK” works, too.
A disclosure solely in the written description of the video is not sufficient. The disclosure should occur at the beginning of the video, and the FTC suggests repeating the disclosure throughout the video for the benefit of those consumers who do not watch the video from the beginning.
It is likely that some consumers do not understand that when they click on a product link in a blog post and are redirected to an online retailer, and then they buy that product from the online retailer, the blogger writing the post is receiving a cut of that purchase. You must therefore disclose that you are being compensated from that retailer or brand. The FTC suggests “I get commissions for purchases made through links in this post.” Again, a blanket disclosure is insufficient – the disclosure must be made each time an endorser uses affiliate links, and it must be nearby and easily understood. Merely adding the words “(affiliate link)” or a “buy now” button would not be sufficient to put the consumer on notice that the endorser is receiving a commission from the sale.
Contests and sweepstakes
Sweepstakes and contests should not require participants to tweet, pin, or Instagram to enter the sweepstakes or contest without a clear and conspicuous disclosure that they are doing so in connection with a sweepstakes or contest. Other consumers seeing the tweet or pin need to know that the tweeter or pinner is using the hashtag, or photo, or other content, for the purpose of getting something in return (entering and potentially winning the contest), not solely because she really likes the advertiser or its products or services. The FTC suggests having the entire word “contest” or “sweepstakes” in the hashtag that the advertiser desires to use. #IheartWXYshoes could become something like “#IheartWXYshoes_contest.” “sweeps” is not sufficient, because consumers might not understand what that means.
Message regardless of medium
While the media through which information is conveyed continues to change, consumer protection law really hasn’t. But the way in which the law is applied in a particular medium is constantly evolving. Regardless of platform, transparency is good for consumers, brands, and endorsers. Disclosure of the connection between brands and endorsers gives credibility to both the brand and the endorser, because it assures consumers that they are not being “tricked.” Making disclosures in connection with endorsements online can be simple, need not detract from the message, and does not mean that you have sold out. Also, it’s the law.
DISCLAIMER: This article is provided for informational purposes only, and is not to be construed as providing legal advice or opinion. You must not rely on the information herein as an alternative to legal advice from an attorney. If you have any specific questions about any legal matter you should engage an attorney. The legal information herein is provided “as is” without any representations or warranties.