HOW TO AVOID THE PITFALLS AND ENJOY THE SUCCESS OF ... · 10/16/2019 · » Influencer agreements must address unique issues: - Regulatory compliance - Wide range of content, and

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PRESENTATION TO PR COUNCIL

HOW TO AVOID THE PITFALLS AND ENJOY THE SUCCESS OF INFLUENCER MARKETINGWednesday, October 16, 2019

Michael C. Lasky

Partner/Co-ChairLitigation; Public Relations Law [email protected]

Paavana L. Kumar

AssociateAdvertising, Marketing & Promotions 212.468.4988 [email protected]

© 2019 Davis & Gilbert LLP

FTC ENDORSEMENTS AND TESTIMONIALS

» FTC requires disclosure of material connections:

- When there exists a connection between the endorser and the seller of the product which might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed

» “Material connections” can include payments or free products that the consumer would not expect, including experiences, trips, event tickets, gift bags, loaner products, tester products, and other support or benefits

How to Avoid the Pitfalls and Enjoy the Success of Influencer Marketing1

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LESSONS LEARNED FROM FYRE FESTIVAL

» Influencer marketing can be highly effective

» Influencers should conduct due diligence on the companies they endorse to make sure their products are legitimate – and actually exist

» Brands may see more influencers pro-actively including disclosures

» Brands should conduct their own due diligence to ensure their influencers historically have disclosed their sponsored posts

» There is more pressure on the FTC to monitor influencer marketing more closely


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FTC ACTIONS


2017 WARNING LETTER TO INFLUENCERS

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HOW TO MAKE A DISCLOSURE ONSOCIAL MEDIA

» There is no special language but the goal is to effectively communicate your relationship with the marketer

- #Ad

- #Paid

- #Sponsored but not #spon

- #Brand Ambassador but not #ambassador

- #BrandPartner but not #partner


HOW TO MAKE A DISCLOSURE ON SOCIAL MEDIA

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WHAT’S SPECIAL ABOUTINFLUENCER AGREEMENTS?

» Social media stars are collaborating with brands in new and creative ways to produce content that will engage their followers

» Marketers and agencies are spending more money than ever on YouTubers, Instagrammers, and other social media influencers

» Influencer agreements must address unique issues:

- Regulatory compliance

- Wide range of content, and associated production, ownership, andrights issues

- Public relations risks



SPONCON

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FINAL TIPS

» Ensure written contracts for influencers

- Don’t forget the morals clause and sponcon clauses

» Ensure influencers are disclosing their relationship when speaking about your products

- Disclosure should be clear and prominent and not below the “more” button

- Youtube and video disclosures should be in the videos themselves and not in description box

- Superimpose disclosures on Instagram stories and Snap Stories


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FINAL TIPS

» Monitor influencers to ensure they are making the required disclosures

» Ask for approval rights before influencers post

» Terminate influencers who do not make the requisite disclosures

» Consider monitoring influencers’ engagement-to-followers growth over time to detect artificially boosted accounts

» Stay on top of visual and algorithmic updates to social platforms – and update disclosure practices accordingly


QUESTIONS

Michael C. Lasky

Partner/Co-ChairLitigation; Public Relations Law [email protected]

Paavana L. Kumar

AssociateAdvertising, Marketing & Promotions 212.468.4988 [email protected]

© 2019 Davis & Gilbert LLP

HOW TO AVOID THE PITFALLS AND ENJOY THE SUCCESS OF ... · 10/16/2019 · » Influencer agreements must address unique issues: - Regulatory compliance - Wide range of content, and

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