In recent months, the media has been reporting on increased regulatory activity involving the Federal Trade Commission (the “FTC” or “Commission”) and the sellers that hire non-compliant influencer marketers.
What can influencer marketers, their seller clients and social media influencers do to protect themselves?
FTC Actions for Social Media Influencer Violations on the Rise
Recent reports highlight two Commission enforcement actions that we previously covered, including Warner Bros. Home Entertainment Inc.’s (“Warner Bros.”) settlement of FTC deceptive advertising allegations in July. In that case, Warner Bros.’ influencer marketer coordinated a YouTube influencer endorsement campaign around the release of the new video game, Middle Earth: Shadow of Mordor. The Commission alleged that the product endorsement disclosures of “PewDiePie” and other YouTubers on behalf of Warner Bros. were legally inadequate.
Similar FTC claims were settled by Lord & Taylor, LLC (“Lord & Taylor”) this March. According to the Commission, Lord & Taylor’s influencer marketer hired fashion influencers to post photos of themselves wearing a specified Lord & Taylor dress to Instagram with the @lordandtaylor user designation and #DesignLab hashtag. However, the influencers were purportedly not required to disclose in their postings that they had been compensated by Lord & Taylor. As in the Warner Bros. case, the FTC alleged that Lord & Taylor’s actions amounted to deceptive advertising.
For Social Media Influencers, Influencer Marketers and Those Who Hire Them, Compliance Is Key
In recent years, the FTC has aggressively investigated paid social media endorsement campaigns. As the above-referenced cases illustrate, influencer marketers (as well as the clients of influencer marketers) engaged in social media endorsement campaigns are at risk of regulatory action and other adverse legal consequences. Likewise, strict social media account policies, and a recent statement from the FTC that it may start taking action against individual endorsers, also place non-compliant social media influencers at risk. As such, businesses and individuals operating in the social media space should be sure to speak with an experienced marketing attorney before commencing an influencer marketing campaign.