Influencers are big business. Whether you are an influencer, or a brand that hires them, it’s necessary to understand what you need to do to comply with influencer laws. Well never fear, as an influencer law firm, we are here to help.
Now, before you dive into this blog, you might first want to know what are the laws that govern influencers. You can read all about that on our earlier blog: What are influencer laws? But assuming you are up to speed, we are going to cover what influencers need, and what brands that hire influencers need, to comply with influencer law. Let’s start with influencers.
The first thing that you’re going to need to do is know and understand the law. Meaning, how can you comply with influencer laws when creating online posts, reviews, and endorsements? In a nutshell, there are two things you must know: first, be truthful about your review and make it personal to you, which is really not that big of a deal because we know that you’re not going to lie, right? But the second thing you need to do is clearly and conspicuously disclose the material connection between you and the brand – in other words – that it’s a sponsored post.
So, let’s say that you were hired by a company called Sugar Bear Hair to be their brand ambassador. You are asked to create posts for their hair care gummies. Would creating a post of you, holding the product, with a caption that includes the words #SugarBearHairPartner be enough to comply with the law?
The answer is, maybe.
Those words themselves are clear and conspicuous, but it depends upon where you put them. You must put them “above the fold,” meaning within the first couple lines of your post, depending upon the platform that you use. Now why is that?
Let’s say that you had an Instagram post and you said something like, “I love Sugar Bear Hair. It’s the greatest gummy that’s out there to give me fresh flowing locks. I love them so much. #Ad #Sponsored #SugarBearHairPartner.” In that respect, you’re using the right language but when I access this on my Instagram account, I have to click “see more” in order to find the disclosures. That’s not clear and conspicuous because it’s located “below the fold.”
Let’s examine another common way influencers use hashtags that are not clear and conspicuous. Let’s say you have a blog and you write about your experience with Sugar Bear Hair on the blog, but you don’t put the disclosures there. Instead, on your bio, you say something like, “The products and services on my blog are likely provided to me for free or I was paid to write these blog posts.” That again is not enough to comply with the law because it’s not clear and conspicuous. The reason is because if I read your blog, I have to then go somewhere else to find the bio.
So, because different platforms like Instagram, Twitter, and even blogs are different, there’s no one size fits all approach to make sure your content always includes clear and conspicuous disclosures. Instead, you have to follow the rule that things must be above the fold. What does that mean?
Back in the old days of advertising, you might have a newspaper. A newspaper would be folded in half. Let’s say put a buy a full-page advertisement that puts your product or service at the top of the page. If the disclosures were hidden below the fold, meaning, I have to unfold the page to find them, that’s not clear and conspicuous. Instead, you want to make sure that people see the disclosure before they had to unfold the ad. The same analogy applies with social media.
Imagine your Instagram post caption that appears under the photo or video. The text that appears when before you click “see more” is above the fold, and the text that appears after is below the fold. Same thing with other social media platforms. If you could follow that general guideline, then you’re going to be creating influencer content in a way that likely complies with the FTC’s Truth in Advertising laws.
Now, what if you are a brand that hires influencers, what do you need to protect yourself? You’re going to do three things. First, have an influencer contract. This is one of the major ways our influencer lawyers help brands protect themselves when working with talented influencers.
Make sure that the contract protects you as the brand in the event that your influencer doesn’t do the right things and uses the right disclosures. Your contract should also educate and instruct your influencers on what you want them to do to comply with the law. Because if you don’t do that and your influencers don’t follow the rules, guess who the FTC is coming after? You.
You’re the deep pocket. You’re the one who hired the influencer and is getting the benefit of their services. You’re the one that’s going to be fined. And fines can cost up to $43,000! So, you want to have a contract that protects you, but you also want to make sure you empower your influencer.
The second thing you need to do is train your influencers on how to do the disclosures correctly. The training program you will need is different depending upon what type of brand you are.
If you’re Nike and you’re hiring LeBron James, Pete Alonzo, or another big celebrity that is out there, you probably have a higher degree of responsibility to train those influencers than if you are kind of a mom and pop shop selling white t-shirts and you’ve got some micro influencers that you’ve found using #DiscoverUnder20K. The training could be done anywhere. It could be on a phone call, it could be on a webinar, it could be having an influencer coming in for in-person training, it could be giving them examples of this is what is okay, and this is what is not okay.
When we here at The Social Media Law Firm we draft social media influencer contracts, or brand ambassador contracts, we’ll include example disclosures within the contracts to make sure that our influencers or our brands are protected. Regardless of how you do it, you’ll need to train your influencers to make sure they do it right, so you set your yourself and them up for success.
The third thing brands need to do is monitor their influencers’ posts. You can’t just turn a blind eye and say, “Well, you better follow the law, and if you don’t, well, I’ve got a contract and I’m going to sue you.” While the contract is good, you want to make sure that your influencers follow the rules, and so if you’ve got a small number of influencers, it’s easy to monitor their posts and make sure they’re doing things correctly and if they’re not, asking them to edit it. And if they don’t edit their posts, or they don’t follow the rules, your contract should say that you have the ability to cancel the contract because you don’t want to be held liable for them not following the rules.
Now, you might think, “Ethan, we’re a big company. We hire thousands of influencers who make thousands of posts. It’s unreasonable for me to look at them all,” and I would disagree with you. I would say if you’re going to have the benefit of thousands of influencers, and all of the wonderful engagement that comes along with it, you also have a responsibility to make sure that your influencers do things correctly. So, you may need to invest in a monitoring tool. You may need to have internal staff looking at what your influencers are doing because ignorance is not a defense under the law.
If you have millions of influencer posts, it may be more practical to review sample size from each influencer, but you nevertheless have to act reasonably. You can’t not monitor them all. Brands of this nature should likely invest in social media listening tools or other technology to more easily monitor influencers for compliance.
So, at the end of the day, that’s what you need as an influencer or brand that hires influences to protect yourself. If you need help with influencer compliance, whether it’s drafting contracts, setting up a training program, or understanding how to properly manage influencers or to properly grow your brand as an influencer, The Social Media Law Firm would love to hear from you, too. Send us an email or give us a call. We’d love to help you.
