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5 Ways to Make Sure Your Social Media Influencer Campaign Is Legal (and Doesn’t Raise Red Flags)

Eric Pesale

Eric Pesale is an attorney and entrepreneur who writes about business and legal issues for law firms, publications, and companies as the founder and chief legal contributor of Write For Law℠ (https://writeforlaw.com). He is a graduate of New York Law School and the University of North Carolina at Chapel Hill, and has been published in CSO, the New York Law Journal, and Above the Law.He is actively engaged with startup business issues, and also helps with Barkitwear® (https://barkitwear.com), a family-run, USA-made dog products company.

Social media is an invaluable tool for marketers, advertisers, and businesses looking to go viral—and, in turn, attract new customers. To achieve this, many small businesses turn to influencers for help. A survey from Collective Bias found that 30% of consumers have made a purchase based on sponsored content. While working with influencers can be a great business move, you’ll need to ensure that you handle your collaborations ethically to avoid raising red flags with the Federal Trade Commission (FTC).  

Under the FTC’s endorsement guidelines, brands and influencers are required to clearly and conspicuously disclose any “material connections” between them, unless their relationship is made clear through the particular communication. These connections would be considered material if knowing them would impact users’ opinions about the credibility of the endorsement.  

Fortunately, compliance with these guidelines is relatively straightforward; influencers and businesses simply need to make sure they clearly disclose any paid relationships in their content. Here are five steps you can take to ensure that the influencers you’re partnering with are ethically promoting your brand.

1. Include Disclosures and Hashtags in Content

If you’re asking an influencer to post social media content that promotes your business, product, or service, you should also ask them to use disclosures or hashtags stating that their content is sponsored. Since Twitter first introduced hashtags to the social media world in 2007, many of the other major social media platforms have followed suit. Using hashtags, influencers can easily mark their content to indicate that the post is #paid, #sponsored, #sponsoredcontent, #advertising, or an #ad.

This Twitter post from Ryan Seacrest, for example, uses the hashtag #sponsored to show that he was paid to tweet about Coke Zero.  

If you’re targeting bloggers or vloggers, it’s critical that you have them include clear, easy-to-find disclosures describing your relationship with them. Although not technically an influencer piece, this multimedia collaboration between The New York Times and Guinness profiling the history of Guinness Beer serves a good example of the kinds of disclosures you should ask your influencer collaborators to display to ensure FTC compliance.  

2. Ensure Hashtags Are Clearly Communicated and Conspicuously Displayed

Even if you and your influencers use hashtags, you could still face trouble if you aren’t using them properly. The FTC recommends using hashtags that are simple and easy to understand, including #sponsored, #promotion, #paidad, or #ad.  Hashtags such as #client, #advisor, #ambassador, #partner, #collab, #thanks[BRAND], #sp, and #spon, on the other hand, could be considered too vague and therefore confusing to consumers.

Using the appropriate hashtags in posts is a key step, but the FTC could still raise issues if those hashtags are buried in a string of tags, requiring viewers to tap the “more” link to see them. This means that regardless of whether your viewers click on the posts themselves or gloss over them in their daily feeds, they should know right away that the content they’re seeing is sponsored. This can be tricky on Instagram, which only shows the first two or three lines of a caption. Simply listing information in the profile’s main description won’t be enough, either, especially if viewers aren’t required to visit an influencer’s social media profile directly to see their content.  

A good rule of thumb to follow is to use simple, clearly understood hashtags that don’t require additional finger tapping to display, as influencer Alizah Akiko did in this post.

3. Superimpose Disclosures on Images and Video Posted to Visual Platforms

Some social media platforms, particularly Snapchat, are centered more around videos and photos than text. Even with Instagram, it’s possible for users to post time-sensitive “stories,” featuring video clips and images. Don’t expect the FTC to go easy on influencers who primarily promote your business through video instead of text. To make any material relationships particularly conspicuous to consumers, the FTC advises that marketers and influencers superimpose non-auditory language on any snaps, videos, and livestream content to ensure all necessary disclosures are clearly communicated.

Fortunately, you don’t need to use a video editing tool to achieve this, although iMovie for iPhone, Filmora for Android, and other smartphone video editing tools do allow you to do this. Your safest bet is to have your influencers superimpose plain and unambiguous text onto their snaps, stories, and videos to show that they’re sponsored. See an example of this from actor Josh Peck promoting Amazon Echo.

4. Don’t Rely Solely on Social Media Platform Paid Partnership Disclosure Tools

Many social media platforms have responded to the FTC’s concerns by giving brands and influencers the ability to explicitly call out paid partnerships in posts. This video post from Doug the Pug advertising Planet Fitness provides an example of how Instagram handles this, while Bloomberg uses Facebook’s disclosure feature for its sponsored articles.  

However, the FTC cautions that even taking this step may not be enough, especially if the placement of this disclosure is not clearly displayed or positioned when users access it for the first time or while they’re using particular apps as they normally would.

Again, much of this depends on how clearly and conspicuously these disclosures are displayed on your influencers’ posts. Consider factors like the font size of the disclosure text, how well the disclosure text contrasts from the influencer’s image or post background, and whether it’s worded in a way that effectively communicates the influencer’s relationship with your business. Ideally, the placement of these disclosures should be difficult for casual viewers to miss or gloss over.

5. Be Transparent and Honest

When working with influencers, it’s just as important to have them speak truthfully about their experiences using your products and services as it is to disclose your paid relationships properly. Failing to be transparent about this could easily inspire a FTC complaint.

Machinima, a video entertainment network for gamers, made this error in 2013 when paying two high-profile gamers $7,500-$15,000 per video to post positive content about the Xbox One. As part of the program, these influencers were required to sign a confidentiality agreement about their arrangement, and were not required to disclose that their videos were sponsored. After finding that Machinima had violated provisions in the Federal Trade Commission Act, the FTC issued a consent order requiring Machinima to implement a comprehensive content monitoring and review program for influencer content, generate related compliance reports, and submit to five years of compliance auditing.

In the end, it’s always best for you and your influencer network to be honest and clear when promoting your products and services. As the FTC suggests, having your influencers include such statements as “Company X gave me product Y to try,” “Company Z sponsored this video,” or using appropriate hashtags should be enough to get the point across. You can also review additional guidance from the FTC on influencer and endorsement marketing by reviewing the FTC Endorsement Guidelines.

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Working with influencers can be a highly effective way to increase your business’s visibility and ultimately attract new customers. But you’ll want to be absolutely sure that you and the influencers you choose to work with are following all laws and rules so you don’t run into any avoidable problems with the FTC.

Editorial Note: Any opinions, analyses, reviews or recommendations expressed in this article are those of the author’s alone, and have not been reviewed, approved, or otherwise endorsed by any of these entities.

Eric Pesale

Eric Pesale is an attorney and entrepreneur who writes about business and legal issues for law firms, publications, and companies as the founder and chief legal contributor of Write For Law℠ (https://writeforlaw.com). He is a graduate of New York Law School and the University of North Carolina at Chapel Hill, and has been published in CSO, the New York Law Journal, and Above the Law.He is actively engaged with startup business issues, and also helps with Barkitwear® (https://barkitwear.com), a family-run, USA-made dog products company.

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