Influencer marketing, wherein companies partner with so-called “influencers” to help the companies grow their brands, is growing in popularity. A recent study found that influencer marketing is 11 times more effective than traditional banner ads! Bloggers, Instagram, YouTube, Vine and Twitter users with huge followings can leverage the millions of eyeballs on their content on behalf of companies seeking to target specific audiences. This is done primarily by trading off of the influencer’s cache and trust with in their niche/community. This trust, however, must be handled with care. Which is why the Feds – the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) – have been watching and cracking down on noncompliant influencer marketing campaigns. A smart brandista/o like you would make sure your agreements with these companies were on point legally before agreeing to participate in any promotions. Here are three things to keep in mind before signing on to an influencer campaign.
Keep it real. All the way real.
According to the FTC Endorsement Guides FAQ (which you should definitely check out), “You can’t talk about your experience with a product if you haven’t tried it.” And, “if you were paid to try a product and you thought it was terrible, you can’t say it’s terrific.” Making false or misleading statements while endorsing a brand or product can mean big trouble. Enter Kim Kardashian who, in 2015, received a warning from the FDA for a sponsored Instagram post in which she promoted a morning sickness drug without mentioning its associated risks.
Tell it like it is
According to the FTC, failure to disclose a relationship between yourself and a company is deceptive and therefore a violation of Section 5 of the FTC Act. Case in point: Cole Haan’s #wanderingsole campaign. In 2014, Cole Haan launched a marketing campaign in which the company encouraged Pinterest users to create boards that included images of Cole Haan shoes and images of the contestants’ “favorite places to wander,” while using the hashtag “#WanderingSole” for a chance at a $1,000 shopping spree. The problem? The campaign failed to disclose contestants’ connection to Cole Haan.
The FTC is clear that disclosure is required whenever an influencer is given an incentive (financial or otherwise), where knowledge of that incentive would affect the weight or credibility that audiences give to the influencer’s statements or actions. Basically, influencers need to make sure that audiences are aware of the relationship between themselves and the company.
Not only that, but your disclosure has to be clear, unambiguous and easy to find. In the Cole Haan case, the FTC didn’t think that the #WanderingSole hashtag adequately communicated the relationship (and $$) between the contestants and Cole Haan. A better move would have been to use a hashtag like #Ad, #Promotion, #Contest or #Sweepstakes to communicate the relationship behind the scenes.
Intellectual Property, "put some respeck on it”
While engaging in an influencer marketing campaign, a company might give you the right to use their IP, including logos, branded materials or other owned content, Be sure you understand the scope of intended use and stay within those limits to avoid problems down the line. Likewise, companies may want to use or own content that you, the influencer, create while promoting their brand. Check your agreements to see if such an assignment or license is included and determine whether you’re comfortable with that arrangement before signing on the dotted line.
Have more questions about influencer marketing campaigns – how to participate in them or how to host one for your company? Happy to help.
Disclaimer: The above post is for informational purposes only. It is not legal advice. Do not rely on it as legal advice. Seriously. If you have a question about this topic or any other legal matter, you should contact an attorney licensed to practice in your state. I am a lawyer, but I’m not your lawyer. If you want me to be your lawyer, particularly in regards to IP, copyright and digital brands & business, you’re welcome to contact me. The content presented above is attorney advertising.