These days, how many women see a cute dress in a blogger’s Instagram post and track it down to buy it? Or more likely, click through the bloggers' tags to either find the brand or directly shop the dress? Knowing all about this Instagram habit, Lord and Taylor decided to capitalize on it by using social media to launch its Design Lab apparel line aimed at women between 18 and 35 that focused on one particular paisley dress.
Lord and Taylor’s social media campaign had two parts: a fashion magazine article and influencer endorsements. First, they paid Nylon, an online fashion magazine, to run an article about the Design Lab collection with a photo of the paisley dress. Nylon was also paid to post a photo of the dress on its Instagram page. Second, Lord and Taylor also gave the dress to 50 influencers and paid them to post photos of themselves in the dress on Instagram. The Instagram campaign reached 11.4 million individual users.
A cool marketing campaign, right? Wrong, according to the FTC. Lord and Taylor did not require Nylon or the influencers to disclose any compensation or commercial arrangements, so the posts were missing the required disclosures. The FTC also specifically said that Lord and Taylor falsely represented that the Nylon article reflected Nylon’s independent opinion about the Design Lab line and that the Instagram posts reflected independent statements of impartial fashion influencers. So with the rules we already know from Sony and Machinima, where could Lord and Taylor have done better? How can you avoid the same problems? Here’s where the rules stand (subject to one more case that we’ll discuss tomorrow):
- Don’t make misrepresentations about any feature or capability of your product
- Don’t say your product can do something unless it actually can
- Don’t make misrepresentations in an influencer campaign that an influencer endorsing your product is an independent user or ordinary consumer if they’re not
- Don’t make representations about someone endorsing your product unless you clearly and prominently let consumers know that you have a material connection to them
- Do include clear and prominent disclosures of any material connection between the influencer and your company in close proximity to the representation
- Do take reasonable steps to take down endorsements that violate the rules
- Do take reasonable steps to comply with the above requirements – what are reasonable steps according to the FTC?
Brands must have an enforcement program! Here are some basic thoughts to get you started:
- Because advertisers are responsible for backing up objective product claims, explain to your influencers the claims you can back up about your product
- Instruct influencers about their responsibility to disclose their connection to you
- Periodically search to make sure influencers are following your instructions
- Follow-up with influencers if you spot questionable practices
Bonus thought! Develop an overarching influencer policy. Post it on your website and include it in every influencer contract – make sure your bases are covered.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation, and privacy.