Bloggers Beware!

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Bloggers Beware!

 

The Issue

Calling all bloggers! The purpose of this post is to bring attention to a common problem that many influencers are either not aware of, ignore, or do not take seriously. In a recent blog post, I identified a handful of legal things bloggers should keep in mind. You can access that post HERE.

One of those things is worthy of further exploration in this post.

Here, I discuss the concept of disclosures and how important it is for bloggers to be open and honest with their readers about any endorsements, sponsorships, or marketing campaigns they undertake.

 

The Rule

The plain and simple rule is this: a blogger must disclose whenever he or she has a “material connection” with a brand. A material connection exists between a blogger and a brand whenever the connection between them is: 1) something that the consumer would not expect and 2) something that would affect how the

consumer views the product or endorsement. Material connections are present in familial or business relationships, when there is any sort of compensation involved, and even in the gifting of free products. (Note that “compensation” means more than just giving an actual monetary payment – it can also include giving things like sample products, discounts, and giveaways.) All these material connections must be disclosed to viewers. Why? To protect consumers against deceptive advertising. The Federal Trade Commission (the “FTC”) makes these rules, and they are serious when it comes to enforcement.

A couple years ago, the FTC sent more than 90 warning letters to various actresses, models, athletes, and other influencers who did not make appropriate disclosures for sponsored content in their posts.

Same thing happened in Europe earlier this year. The UK’s enforcement agency (the Competition and Markets Authority aka the “CMA”) had to send letters to big-name celebrities, including Rosie Huntington-Whitely and Rita Ora, because their posts had not properly identified advertisements, endorsements, and partnerships.

 

The Solution

Nowadays, most social media platforms offer tools that bloggers can use (but should not solely rely on) for disclosure statements, like templates for posts that include “paid partnership with” language. Hashtags have also become a critical tool that bloggers use to delineate advertisements or endorsements. Here are some simple rules to follow when you make a disclosure statement for a sponsored post:

  • Make it clear.
    • The disclosure statement should avoid abbreviations. For example, steer clear of the following: #sp, #spon, or #partner. These are too vague and unclear.
    • It’s better to be to the point with “Advertisement” or “Sponsored Post.”
    • Play it extra safe by also including a link in your post to your “Terms & Conditions” and ideally, a “Disclosures” page on your profile that lets people know how you handle sponsored content. A lawyer can help you draft these kinds of documents to make sure you are fully protected.
    • Posting a photo on Instagram? Always a good idea to tag the photo with the brand you are endorsing in addition to making the disclosure statement.
  • Make it conspicuous.
    • The disclosure should be easy for consumers to spot in a post.
    • The disclosure statement should not be hidden in a sea of other words. Putting “#ad” in the middle of a string of 50 hashtags? Not okay.
  • Make it visible.
    • The viewer should immediately notice the disclosure, even on quick glance.
    • In fact, the FTC pointed out that when readers are scrolling Instagram on their phones, only the first few lines of a caption are visible before the word “more” appears as an option for readers to click and see the full caption. But, most consumers do not choose to read “more” – they just keep scrolling. Because of this, the FTC has said that influencers must make any disclosures before the “more” button so that all consumers, not just the ones who choose to read the entire caption, are aware of the endorsement.

Moral of the story: when in doubt, disclose and be thorough!

 

 

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