Flat stomach tea. Meal replacement shakes. Waist trainers. Appetite supressing lollipops. These are just some of the “health and beauty” products being advertised on Instagram.

The significant increase in the use of influencer marketing, particularly in the health and wellbeing industry, has had such an effect on the public that just last month the Joint Council for Cosmetic Practitioners announced that its members will begin screening potential customers for mental health problems (eg, body dysmorphia) before administering Botox and filler injections. This announcement has been welcomed by Professor Stephen Powis, medical director of NHS England, who has also called on social media sites to ban celebrity diet product endorsements. As an outright ban seems unlikely, I looked to Lexology to see what controls are already in place and what brand owners should bear in mind before engaging influencers to market their products.

What’s different about influencer marketing?

Influencer marketing allows brand owners to market their products to a wide audience for relatively little cost. Success lies in the level of trust between an influencer and their audience, which is much higher than that between brand owners and consumers. However, it is this high level of trust which can have a detrimental effect on vulnerable audiences, which has given rise to ethical concerns.

This appears to be the case in Austria, where the Advertising Council has created specific rules of conduct for marketing by influencers due to their position as role models. According to Schoenherr, influencers cannot include obvious or subliminal requests to purchase a product in advertising that is aimed directly at children and adolescents or use images (eg, selfies and pictures) that propagate harmful behaviour or harmful body shapes (eg, bulimia, anorexia and obesity).

What are the rules?

Disclosure  In many jurisdictions, the number one rule when it comes to influencer marketing is disclosure. For example, the US Federal Trade Commission (FTC) has issued guidelines which require parties to “clearly and conspicuously” disclose a brand relationship when promoting products on social media. According to Garvey Schubert Barer, when a connection exists between an influencer and an advertiser that might materially affect the weight or credibility of an endorsement, this connection must be fully disclosed. Notably, financial compensation is not necessary for a material connection to exist; the requirements also apply where there is a family or employment relationship between the two parties or the influencer receives other perks in return for endorsement, such as freebies.

The easiest way to comply with these guidelines is to use hashtags (eg, #AD or #ADVERTISING). However, it is not enough to simply include a disclaimer hashtag anywhere in a sponsored post. Taylor Vinters LLP has provided a useful overview of the requirements in this regard – for example, the hashtag must be at the beginning of the post in the title or thumbnail and cannot be embedded in a list of hashtags such as: “Thanks so much to @[brand] for my lovely new makeup, can’t wait to try it! #new #makeup #face #ad #excited #freebies.”

Misleading statements As with traditional forms of advertising, influencer marketing cannot include misleading statements. Thus, Smart & Biggar/Fetherstonhaugh recommends that all parties involved ensure that any statements made by an influencer about a product, service or brand be:

  • genuine opinions based on experience;
  • claims based on facts; or
  • performance claims based on proper and adequate testing.

In the European Union, EU Regulation 1924/2006 goes some way to protect consumers from inaccurate health and nutrition claims. As reported on by RPC, in 2017 the UK Advertising Standards Agency (ASA) upheld a complaint against Nomrad Choice Pty Ltd after an influencer posted before and after pictures on social media to advertise the alleged effects of its Flat Tummy Tea. Interestingly, as Bird & Bird LLP pointed out, the ASA went so far as to rule that the product name in and of itself could be construed as a health claim, in which case Nomrad would be prohibited from using it in advertising unless it was accompanied by an authorised health claim.

While it should be possible to regulate false claims, determining whether a statement constitutes a genuine opinion is perhaps a little more difficult. In 2016 Scott Disick accidentally included a brand’s posting instructions in his social media ad for a type of protein shake, shattering the illusion that an influencer’s claims about a product will be their own personal opinion. For Drinker Biddle & Reath LLP, this creates doubt as to whether influencer marketing meets the objectives of the rules on false advertising (ie, ensuring authentic, consumer-relevant information).

What happens if you break the rules?

Although many jurisdictions have introduced guidelines on responsible influencer marketing, whether these are being enforced remains to be seen. According to Manatt Phelps & Phillips LLP, Truth in Advertising, Inc (TINA) has filed a formal complaint with the FTC for its failure to act in this regard. In 2017 the FTC sent more than 70 letters to influencers reminding them to disclose their brand relationships, but no enforcement action has been taken, despite at least 21 influencers ignoring the FTC’s warnings.

That said, influencer marketing is increasingly coming under the regulatory spotlight throughout the world (as witnessed by the growing number of articles on Lexology in this regard). As such, it is likely only a matter of time before the authorities begin to target parties for lack of compliance.

Key considerations

Although the specific laws and regulations on influencer marketing differ for each jurisdiction, according to Lexology, the following key considerations should be borne in mind:

  • Many authorities will hold both brand owners and influencers responsible for a breach of the advertising regulations (in some jurisdictions, such as South Africa, brand owners will be held primarily responsible).
  • As such, brand owners should ensure that influencers clearly and conspicuously disclose their relationships with the brand and that any claims made by the influencer are genuine and not misleading.
  • For health and nutrition-related products, any claims must also comply with the specific regulations which apply in this regard (eg, EU Regulation 1924/2006).
  • Brand owners should take steps to ensure compliance on the part of influencers (for Taylor Wessing, a good approach in this regard is to continuously monitor an influencer’s social media activity).

To learn more about influencer marketing in the healthcare industry, sign up for Lexology and Manatt Phelps & Phillips LLP’s webinar on 15 May.