Advertising Law Tool Kit - Tenth Edition | 2022

Venable / 67 Below are some points to help guide you: • If you send free products to social media influencers for them to try and write about, or you pay them to write about your company or your competitors, make sure they disclose the gift or compensation. There are no magic words, but simple disclosures often work best, such as “X Company gave me a free product to try.” • The same rule applies to endorsers or celebrities who are paid to post or tweet about your product or services. Hashtags like #ad, #sponsored, and #[BRANDNAME] ambassador are likely effective in conveying that it’s an ad. The FTC believes that #spon and #sp are not. If you are marketing to kids, you may need to be even clearer. • The disclosure of the connection to a brand has to be right up front, ideally at the start of a post, but in no event after a reader has to click “read more.” Don’t place the disclosure at the end or the middle of a string of hashtags, where it is unlikely to be noticed and appreciated. • Establish a program to periodically remind your employees that they must disclose their connection to the company if they use social media to discuss your products or services. • Incentivizing consumers to “like” your product or service in some fashion may trigger a disclosure requirement. The FTC has said that if a social media platform doesn’t allow or permit advertisers to do that, you shouldn’t incentivize endorsements on such platforms. • Social media posts that are made as part of a contest entry must disclose that they are being made as part of a sweepstakes or contest. The FTC has warned against using abbreviations like #sweeps in lieu of #sweepstakes or #entry, because there is not enough evidence that consumers understand what that means. • If you are using videos as part of your social media strategy, any disclosure must be made in the video itself, right at the start, and not in the video description. • For photo-only platforms, consider superimposing the disclosure directly on the photo to ensure the disclosure travels with the photo if it is shared. • Keep in mind that while the disclosure mechanisms built into the social media platforms are attractive, the FTC says you can’t assume they are sufficiently clear and conspicuous. • Advertisers are responsible for what their social media influencers say. Adopting a social media influencer policy, making reasonable efforts to monitor what they are saying, and taking prompt action if any problems are found will help prevent regulatory problems. • Similarly, if you use third parties to implement your social media strategies, they should be monitored for compliance.