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Influencer Advertising & the Federal Trade Commission Meredith Lowry Wright Lindsey Jennings LLP mlowry@wlj.com @meredithlowry
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Problems Fake reviews Distinguishing Native Advertising from Editorial Content Fake grassroots campaigns - Astroturfing
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Basic Premise Advertising Must be Truthful Marketers May Use Disclosures to Avoid Deception Disclosures must be Clear & Conspicuous Advertisers Must Have Evidence for Claims
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Application to Bloggers & Influencers Bloggers and Influencers can be both Advertisers and Endorsers Advertisers, Bloggers and Influencers are Liable for Claims made that are Deceptive
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Types of Deceptive Claims 1. Claims that fail to disclose a material relationship
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Types of Deceptive Claims 2. Claims that aren’t supported by scientific evidence
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What is an Endorser? Expresses His or Her Opinions, Information or Viewpoints In a manner that consumers would believe reflects the opinions of a person other than the actual advertiser Also referred to as advocates, influencers, or ambassadors Monetary payment isn’t necessary if goods given for comments
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Bloggers Advertising Liability Advertisers are liable for claims made that are Deceptive Advertisers are liable for misrepresentations or unsupported Representations Liable even if a third party provided the representations
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Disclosures – Clear & Conspicuous Proximity to Advertisement Utilize Hyperlinks Effectively
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Disclosures – Clear and Conspicuous
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Disclosures – Hyperlinks Make Link Obvious Label Link Appropriately to Convey Importance of Information it Leads to Make Link Noticeable Assess Effectiveness of Link by Watching Click-through Rates
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Solutions Disclose financial arrangements in conspicuously in clear language Consider the “significant minority” of readers
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Sources Federal Trade Commission (2013) ‘.Com Disclosures – How to Make Effective Disclosures in Digital Advertising’, available at: https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff- revises-online-advertising-disclosure- guidelines/130312dotcomdisclosures.pdf https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-staff- revises-online-advertising-disclosure- guidelines/130312dotcomdisclosures.pdf Federal Trade Commission (2009) ‘Guides Concerning the Use of Endorsements and Testimonials in Advertising’, available at: https://www.ftc.gov/sites/default/files/documents/one-stops/advertisement- endorsements/091005revisedendorsementguides.pdf https://www.ftc.gov/sites/default/files/documents/one-stops/advertisement- endorsements/091005revisedendorsementguides.pdf Federal Trade Commission (2015) ‘The FTC’s Endorsement Guides: What People Are Asking’, available at: https://www.ftc.gov/tips-advice/business- center/guidance/ftcs-endorsement-guides-what-people-are-askinghttps://www.ftc.gov/tips-advice/business- center/guidance/ftcs-endorsement-guides-what-people-are-asking
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