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ATTORNEY ADVERTISING NOTICE. The contents of this article, and the accompanying articles of this five-article set, are: (i) attorney advertisements, (ii) designed and provided for general informational purposes only, and (iii) are not intended to provide, and should not be construed as providing, legal advice of any sort or for any purpose. Neither Dunlap Bennett & Ludwig, PLLC, nor Kurt R. Klaus, Esq., are responsible for any action or failure to act in reliance upon information presented in this article or any accompanying articles. No action, or decision not to act, should be made in reliance on any of the information contained in this article or in any of the accompanying articles.  The choice of a qualified lawyer or other professional is an important decision and should not be based solely upon advertisements.  Prior results that may be mentioned in this article, or in accompanying articles, do not guarantee same or similar outcomes.

Introduction:

As suggested in an earlier article of this five-part series, … competition across brands has neither decreased nor decelerated.  Social media postings featuring endorsements by so-called “influencers” are often key components of contemporary brand activations and are considered indispensable.  Unfortunately, due to no fault of their own, personnel of in-house marketing departments and agencies are not always well suited to readily identify and handle business and legal affairs issues related to influencer deliverables for social media applications.  The present article is the fifth and last in the aforementioned series and concerns the publication of content delivered by corporate or individual brand endorsers, sometimes known as “influencers.”

About the Author:

Kurt R. Klaus, Esq., is a Partner at the law firm of Dunlap Bennett & Ludwig, PLLC, where he heads the Media/Entertainment Law section.  Kurt regularly functions as lead attorney on domestic and international transactions involving many of the world’s leading media companies and provides creative and practical guidance with related legal and business strategies.  He has been legal counsel to top world brand corporate marketing and social media departments, television networks, content production companies, musicians, and music composers.  Prior to practicing law, Kurt produced television commercials, was an executive in two mid-sized media production and distribution companies, and earned a Master of Science degree in Communications (Advertising Emphasis).  [email protected], www.DBLLawyers.com.

Publication of Influencer Deliverables:

Today’s brand activations ever more utilize influencers, i.e., endorsers who prepare and publish content in order to influence consumer perspectives, perceptions, and purchase decisions.  While such tactics support agile marketing opportunities, there likewise arise concerns:  state and federal consumer law compliance.

It is important for advertisers to understand that they can be held responsible not only for their own actions, but also for those actions or omissions of endorsers/influencers and agencies whom their brands engage.  Challenges can be initiated by federal regulators and state Attorneys General (under state Unfair Deceptive Acts and Practices statutes), self-regulatory bodies (e.g., National Advertising Division of the Council of Better Business Bureaus), competitors, intellectual property owners, celebrities, advertising watchdogs, and consumers, … among others.  Our focus in this article will be limited to FTC administrative review and process in relation to influencer social media postings.

The FTC’s interests are to prevent unfair or deceptive acts or practices in, or affecting, commerce.  This includes matters involving influencer social media postings.  The FTC has advised not only that endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser/influencer, but also that when there exists a connection between the endorser/influencer and the seller of the advertised product that might materially affect the weight or credibility of the endorsement, such connection must be fully, clearly, and conspicuously disclosed.  Material connections requiring compliant disclosure include: compensation of any form that would not be expected by a consumer(e.g., payment, free product or services, sweepstakes entry (not only winning, but includes the opportunity to enter), travel, and other “things” of value); employee or other engaged relationship with the brand; or, ownership interest in the brand.

Over recent years, the FTC has given a lot of attention to whether and how brands and influencers disclose such material relationships.  However, what the FTC deems as compliant has been a bit of a moving target over recent years.  To summarize current understanding, the following hashtags and other disclosures used as part of a social media post may suffice (depending on the actual facts at-hand): #Ad; ADVERTISING; #Paid; #Sponsored; “[Brand] Employee;” “Thanks [Brand] for the free [details].”  Other disclosures may apply.  Brands should not bury disclosures in copy or as part of a string of hashtags.  Brands should not place disclosures “below the fold,” or require viewers to take additional acts, such as selecting a “more” hyperlink, in order to access them.  Finally, confusing or ambiguous disclosures should be avoided, such as the following: #Sp; #[Brand]Ambassador; #Thanks[Brand]; Partner; and #SeeBelowDisclosure.

Compliance with applicable state and federal laws pertaining to online publication of brand marketing content is a very doable, yet potentially complex, undertaking.  If you are involved in the distribution and media content related to brand marketing and have questions concerning any of the information provided in this advertisement message, please contact Kurt R. Klaus, Esq., at Dunlap, Bennett & Ludwig.

Kurt Klaus, Esq., Dunlap Bennett & Ludwig, PLLC, [email protected], www.DBLLawyers.com.

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