I'm lucky enough to be in Chicago this week, attending the 39th annual ANA/BAA Marketing law conference. Its the 7th year I've been here, and its always a highlight of my working year. Its a huge conference in its scale and reach, and I look forward to hearing from experts from across the globe with their thoughts on a variety of topics on advertising law.
This morning, I listened to a great speech by Linda Goldstein a partner at Baker Hostetler. As usual, Linda's talk was a fascinating, content rich presentation about the current hot topics , including real time advertising, influencer marketing, and augmented reality. The key take outs for me on the subject of influencer marketing were:
- 2018 will be the year of the micro influencer.
- in the US, the Federal Trade Commission has stepped up its enforcement actions and sent warning letters to 90 social influencers, reminding them of the need to be transparent and use appropriate disclosures when posting content paid for by brands
- there has been a slight shift in focus by the FTC; it is now clear that the FTC will consider enforcement action against everyone in the influencer marketing eco system - including the influencers themselves.
- burying a hashtag like #ad or #paidfor right at the end of a very long Instagram post may not be sufficient as it could be easily missed by the consumer. Linda talked about the three line rule: that if the user had to scroll more than three lines or had to click on anything to see the disclosure, then its unlikely to be sufficient. This would be the same in the UK; the ASA and CAP have given consistent that any disclosure needs to be in the marketing communication itself.
- #partner or #[name of brand] is not sufficient to tell the consumer that an influencer has been paid by the brand. As in the UK, disclosures need to be unambiguous. In the UK, the safest way to disclose is currently #advert or #paidfor.
- where a brand has given an influencer product to review, a disclosure such as "thanks@[brand]" is not sufficient. The FTC have pointed out that such a post from an influencer could just be a satisfied customer , and it doesn't necessarily convey the message that the influencer has been sent products for review.
- on Native Advertising, there haven't been as many cases this year by the FTC as in recent years. The FTC's guidelines make it clear that disclosures such as “promoted/ promoted stories/ presented by / sponsored by, brought to you by” are not sufficient for native advertising. But many of those tags are still being used by publishers, and Linda says that 37% of publishers in the US are still not compliant with FTC guidelines.
- Finally, I learned that the best known animal influencer in the US - Doug the Pug – earns $1 million a year on influencer marketing and has over 5million Instagram followers!
"37% of publishers are not compliant with FTC guidelines when conducting native advertising" Linda Goldstein, Baker Hostetler