The FTC released a detailed list of Q&As about its endorsement guidelines. The federal agency uses these guidelines to assess whether an endorsement or testimonial is deceptive. The Q&A also includes “information about disclosing material connections between advertisers and endorsers.”
What does this mean for advertising law?
Heather Dunn of DLA Piper offers five best practices in advertising law in an article published by the American Marketing Association:
1. Know what constitutes an endorsement. Endorsements do not require explicit wording by the endorser stating that they approve of or use your product. Simply posting a video or photo of a product or using a product on social media is often sufficient to communicate approval. If it conveys that the poster likes and approves of the product, it is an endorsement. Endorsements can appear in all communication channels for your brand, including social media, live communications, online, print, television and radio.
2. Take stock. Catalog how your company may be creating material connections, which includes the following: paying money to a celebrity or blogger to promote your brand; providing free products or discounts to bloggers; offering entries into a sweepstakes or contest in exchange for posting photographs or statements about your brand; paying a salary to your employees who post great things about your brand on social media; or offering an incentive program to marketing affiliates.
3. Create an endorsement policy. Companies must have reasonable programs in place to train and monitor members of their network. The policy should be customized for your business. A good endorsement policy will inform endorsers of their responsibility to disclose their connection to you; provide them with examples of acceptable disclosures; and explain what they may and may not say about the objective qualities or performance of your products. (Objective claims by the company or its endorsers must be substantiated by the company.)
4. Make obvious disclosures. The FTC requires that disclosures be clear and conspicuous. This means that they should be located right near the endorsement, in a font that is easy to read, and in a shade that stands out against the background. For formats such as blogs and online discussion comments, statements like, “Company X sent me this product to try” or “Sponsored by Company X” could be appropriate. For social media posts with limited space for disclosures, you and your endorsers should use terms such as “ad,” “sponsored” or “sweepstakes” (as applicable) at the start of the post. Hyperlinks to disclosures are not sufficient.
5. Monitor your endorsers. Make sure that you’re searching for what people are saying and posting about your products. Be sure that endorsers are making adequate material connection disclosures, and that they are not misrepresenting your products. If you find questionable practices, communicate with the endorser to remedy the situation.