In the first installment of this update, we described an FTC investigation into a contest run on Pinterest by Cole Haan. There, entrants pinned pictures on Pinterest with #WanderingSole to enter for a chance to win $1,000. The FTC concluded that a person who receives an entry into a contest in exchange for posting content on Pinterest has a material connection with the contest’s sponsor and that material connection must be disclosed to avoid making the advertisement – the entrant’s post – potentially misleading. The FTC did not recommend an enforcement action against Cole Haan, but indicated that it would consider doing so in the future.
The FTC did not limit the application of its guidance to Pinterest or to contests, so advertisers must consider how to make appropriate disclosures (and how to require consumers to do so) across various social media platforms. This is, of course, easier said than done. While the requirement is certainly easy enough to understand it can be a much greater challenge to implement. Among the reasons why it is difficult to ensure that consumers disclose material connections with a brand in the context of social media contests are the following: (For convenience in writing and reading this update the term “contest” is used to refer to both promotions where winners are selected based on a bona fide skill and those where a winner is selected by chance.)
- Lack of Control – Contest sponsors cannot control what entrants actually disclose – they can only request that consumers make appropriate disclosures and take appropriate action against those who don’t.
- Limited Real Estate – Space constraints inherent to many social networking platforms inhibit detailed disclosure. We all know that Twitter limits Tweets to 140 characters each, but other social networking platforms also present varying limitations having an impact on the presentation of disclosures (e.g., limitations on the number of lines displayed, the appearance of posted images, etc.).
- Context – Third parties will most often view the entrants’ posts out of the context of the contest. This is different from a contest microsite where visitors to the site can clearly see that the social media posts are part of a promotion.
- Platform Rules – Platform rules may limit how you require entrants to disclose the material connections. Pinterest, for example, prohibits requiring entrants to Pin the contest official rules.
- Differing Goals – The goals of advertisers and the FTC are in tension (discussed below).
While it can be difficult to ensure that entrants disclose material connections as required by the FTC, this update discusses a few approaches that can provide enough disclosure so third parties understand the material connections between the contest entrant and the brand sponsoring the contest.
Marketing Goals and FTC Guidelines in Tension
On the surface, it seems simple to comply with the FTC guidance to disclose material connections in contests and sweepstakes – just require entrants to add a standard disclosure statement and disqualify those who don’t. In many ways, the FTC views social media as just another form of advertising and, since it requires brands to disclose material connections in other advertising, the same sort of disclosures should be included on social media. To marketers, however, the use of social media is more about generating “organic” buzz – to get people talking and interacting – in a much less formal, less top-down, and more relaxed way than other forms of advertising. Adding traditional disclosures is not so much impossible as it is contrary to the grassroots feel that social media advertising is supposed to have. If every post in a social-media contest needs to include the statement “I received ‘_________’ in exchange for making this post,” then many of the marketing folks would prefer not to run the contest. In short, the FTC wants entrants to show their motivation and marketers don’t.
It would be easy to require contest entrants to stamp a large disclosure on their posts and disqualify them if they do not, and it would be similarly easy to do nothing at all and deal with any issues that may arise down the road. The Endorsement Guides aren’t “law,” after all, and the FTC (hopefully) will prioritize and focus on other, more egregious “wrongs.” Perhaps the best solution, however, is for both sides to give a little. The approaches that we discuss in this update are intended as a minimalist approach that may not make a marketing department jump for joy, but should be enough to keep them from open rebellion. More importantly, these approaches should keep your promotion from being the next one to which the FTC decides to give its attention.
Short URLs and Icons
The first option is to require entrants to include a brand provided icon or short link that, together with the linked content, provides a simple message that the post was made to receive entry into a contest. The short links should be designed in a way so that the link itself provides some basic disclosure – the company CommandPost (www.getcommandpost.com), for example, offers a plain language URL solution with short links such as “conditions-app.ly” or “click-here-for-rul.es” or “paid-po.st.” Instead of text-based links, you could provide icons or symbols that provide enough some disclosure and a link (if technically possible on the applicable on platform). Instead of using a third-party solution, some brands may prefer to develop their own set of icons, links, and landing pages that are specifically tailored to the kinds of activities in which the brand engages and that are consistent with the brand’s broader approach to marketing. In that way, the disclosure itself could serve as another method to build the brand while mitigating some of the risk involved in social-media contests. There are any number of variations and options when it comes to using URLs or icons/symbols to meet the disclosure obligations. Empowering marketers to find the right creative solution is certainly a worthwhile approach, provided the creative team has a clear understanding that: (1) the post itself must include a reference to both the brand AND the promotion (or other triggering activity); and (2) using a link to webpage or other source for the nitty-gritty details is fine, but it is not a comprehensive solution.
Another option is to require that participants in social-media contests use hashtags and directed messages. Using this method, the brand would instruct entrants in a contest to include a contest-specific hashtag (#BrandContest), a hashtag indicating that the post is a contest entry (#MyEntry), and direct the message at the sponsor of the contest (@Brand). The specific content of the hashtags could vary – #MyEntry or #Entered or #PickMe may all work – and the hashtags could be combined (#MyBrandContestEntry, for example), but the important part is that the messaging provides some information on what the material connection is (an entry into a contest), what the contest is so viewers can find more information, and with whom the material connection exists (the brand). The question to ask in determining whether a particular disclosure is adequate is not whether the post in the context of the social media contest discloses the connection, but whether the post viewed in isolation provides third parties with enough information to connect the dots. If possible for a specific type of contest and on a specific social media platform, you could also require that entrants post their entries as responses to the contest call for entries. This increases the likelihood that third parties viewing an entrant’s post will see that the post was made in response to a contest call for entries.
Social media platforms present unique challenges in complying with the FTC’s directions especially when contest sponsors need to require entrants to disclose a material connection with the sponsor. Contest sponsors should consider each social media platform independently and how to use its functionality to make entrants disclose with whom they have a material connection, and the nature of that material connection. While the guidelines provided in this update can be a useful baseline, you should be mindful to tailor your entry requirements to fit the unique requirements of each promotion and the platform (or platforms) on which it takes place.