Author: Nikaela Jacko Redd, Esq.
Today’s fashion brands are using celebrities and social media personalities on social media platforms more than ever. The landscape on how brands may market their product has changed and is more directly targeted toward the consumer. Celebrities like Kim Kardashian or Cardi B may simply post an article of clothing, shoes or purse on their Instagram page and their followers are instantly connected and intrigued by that brand. The practice helps brands instant connect with potential consumers by creating a more authentic story. However, the Federal Trade Commission (“FTC”) has caught up with modern technology and is updating regulations to reflect these new mechanisms of advertising. To stay ahead of these new legal developments, brands should develop a habit of alerting each influencer to disclose their relationship when posting to avoid liability or “fall out.”
There are four practical guidelines that influencers should follow when posting for a brand. First, an influencer must clearly disclose material relationships, such as those where a familial or financial connection is possessed. This means that an influencer must not assume that the public is aware of his or her business relationships. Second, the influencer’s disclosure about the connection must be clear and visible. The FTC warns that relying on a social media site’s platform is not always sufficient, the influencer must ensure that the disclosure is sufficiently visible for all to see. Third, any tags that the influencer makes on social media platforms, such as likes or tags in pictures must be treated the same as an endorsement. In this case, the influencer should avoid ambiguity and cannot make it seem that the tag is not the result of a business relationship. Fourth, on image-only platforms such as Instagram, the disclosures should be superimposed over the images. The FTC discourages placing links for the user to click on to inform the user of a disclosure.
The consequences of not adhering to the guidelines remain unclear. The agency has the authority to order brands and endorsers to surrender money made from deceptive marketing practices. To date, it has decided against using that authority in enforcement actions involving influencer marketing. In one case involving an online gambling social media service, the FTC reached a settlement with two influencers who failed to disclose that they actually owned the company. Last April, the FTC sent over 90 educational letters to brands and influencers to remind them to disclose material connections. And 21 follow-up warning letters to influencers that have failed to disclose material relationships.
Minibio: Nikaela Jacko Redd, Esq. is a fashion enthusiast and avid writer. For more information concerning the do’s and don’ts of brand influencer endorsements on social media platforms, check out the FTC’s Endorsement Guides. https://www.ftc.gov/tips-advice/businesscenter/guidance/ftcs-endorsement-guides-what-people-are-asking
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