Thinking About Engaging an Influencer for Your Next Promotion? Plan Ahead!

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Those running promotions such as sweepstakes or contests on social media may seek to engage influencers, or individuals with significant social media followings, to enhance their promotions’ visibility and boost engagement. But before doing so, there are a variety of rules and regulations to consider and evaluate, including Federal Trade Commission (“FTC”) rules relating to misleading, deceptive, and unfair advertising, state-specific rules relating to promotions, and social-media-platform-specific rules, among others. This post gives a high-level overview of issues to consider before engaging influencers to boost your next contest or promotion.

Time: Those seeking to engage influencers should keep in mind that the process takes time. Plan accordingly!

Image/Values: Those seeking to engage influencers should ensure that the influencer’s past posts and values align with those of your own brand. It is also important to consider whether the influencer has previously promoted products or brands that compete with your own goods or services.

Management: It is wise to consider who will manage the influencer after they have been engaged – will it be a third-party talent agency, or done internally? The latter may require more internal resources, while the former might require an agreement with the third-party talent agency. Under either scenario, those engaging influencers should anticipate needing someone on both the business and legal side to create/review, edit, and approve the influencers’ posts.

Platform Rules: Keep in mind that certain social media platforms may have specific rules, or specific tools, for engaging influencers for creating branded content or partnership posts. These change frequently, so make sure that you review them before engaging your next influencer on a particular platform.

Written “Influencer Agreement”: It’s worth considering the possibility of entering into a written agreement with every influencer you engage, regardless of whether they are a “micro-influencer” or a multi-national celebrity. The influencer agreement is a written contract that helps to protect the company engaging the influencer against potential violations of the FTC rules, state laws, or social media platform rules. Consider including the following items in an influencer agreement:

  1. Standard Contract Terms. Influencer agreements generally include basic contract provisions such as the influencer’s posting requirements (e.g., 3 posts per week for 4 weeks on a certain social media platform), compensation, duration, which social media platforms are being utilized, and the procedure if a post needs to be modified or deleted, among others.
  2. Compliance with FTC Endorsement Guidelines. Each influencer should be aware of, and comply with, the FTC’s endorsement guides (see https://www.ftc.gov/business-guidance/resources/ftcs-endorsement-guides-what-people-are-asking), which require things such as advising the influencer that their statements should be honest and truthful, advising the influencer that they should not make any false statements about the brands, and advising the influencer that they should only make substantiated advertising claims. Providing the influencer with a copy of these Endorsement Guidelines may help foreclose any argument that the influencer was not aware of them when they were engaged by your brand.
  3. Disclosures. Importantly, the influencer must disclose to the public in a “clear and conspicuous” manner that they have a material connection to the company engaging them. To accomplish this, they should: (1) place the disclosure in an easy-to-see place (e.g., within the first few lines of post’s text on Instagram); (2) make the disclosure unambiguous and easy to understand (e.g., #ad or #[brandname]partner rather than #consultant or #collab). Depending on the medium – such as a video livestream – additional or repeated disclosures may be required as well if consumers won’t easily have access to the disclosure text.
  4. Other Items. For some additional thoughts on the terms to include in an influencer agreement, see my colleague David Merritt’s blog here: A Social Contract – Terms to Consider for Influencer Advertising Agreements – TCAM Today.

Engaging an influencer isn’t as simple as asking your favorite celebrity to post about your next promotion. However, with some time and planning, brands can utilize influencers effectively to reach new audiences and boost engagement on their next promotion. Of course, the Faegre Drinker T-CAM team would be happy to assist you in navigating these issues and help you prepare for your next promotion.

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.

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About the Author: Joe Carrafiello

Joe Carrafiello helps clients protect and expand their intellectual property portfolios and advises on legal issues relating to marketing and advertising matters. Joe provides strategic guidance to assist clients in defending their global assets — he has represented clients of all sizes in the life sciences, pharmaceutical, consumer retail, consumer electronics and appliances, insurance, fashion, beverage and financial industries.