INFLUENCER MARKETING 101 FOR BRANDS
When the Federal Trade Commission (the “FTC”) released their Endorsement Guidelines in 2009 they couldn’t have guessed (or at least didn’t guess) the landscape of brand marketing some fifteen years later. In fact, the Endorsement Guidelines don’t even use the word “influencer” a single time. This said, the fundamentals of influencer marketing can be easily distilled.
The Henries Golden Rules of Influencer Marketing
⭐️ True + Honest Opinion: As in all forms of marketing and promotions, an influencer cannot be deceptive and they must share their honest opinion.
⭐️ Substantiate: Brands must have substantiation of all claims made in their product marketing. This includes claims made by influencers. We recommend that brands provide their influencers with pre-approved and substantiated claims. Further, if an influencer tells followers about their experience with a product, this should reflect a typical experience. For example, if an influencer claims that using your new fragrance directly caused their crush instantly to fall in love with them, you need to spend a moment determining if this is true both for the lucky influencer and typically true of other users.
⭐️ Clear + Conspicuous Disclosure of the Relationship: Brands must ensure that their influencer army clearly and conspicuously discloses their relationship with the brand. The disclosure has to be prevalent. You are not required to use the boring #ad disclosure. You may go ahead and more organically disclose the relationship as long as you are doing so in a clear and upfront way. As a threshold question, we like to ask ourselves if our moms would understand that they are viewing an ad when they look at content. To help us out, the FTC has provided some insight into what is not considered clear and conspicuous. Some examples are:
❌ Merely tagging the brand in a post;
❌ Abbreviations like #spon, #collab, or #sp; and
❌ Any disclosure that requires clicking through or scrolling down more than two lines.
⭐️ Educate, Monitor + Enforce: Brands are responsible for educating their influencers on how to produce content that is compliant with law. Once the content is out in the world, the brand must monitor it for compliance and act assertively when non-compliance is discovered.
Although the Golden Rules of Influencer Marketing are straightforward enough, getting all your influencers, content creators, marketing teams and public relations teams to walk the line can occasionally resemble herding cats. Setting up a policy of best practices can help ease the pain a bit. From influencer selection to content monitoring, below are some best practices we recommend to our clients.
Selection: The best way to ensure that an influencer is giving their true and honest opinion is to select influencers who are not just “on brand,” but who are existing customers and fans of the brand. Since many influencers are living their lives in real-time on social media, this isn’t too difficult an undertaking. Taking some time to weed out the influencers who already use your product not only makes your legal department think you’re the best, but it also results in more genuine and effective content.
Gifting: Brands love gifting to the beautiful people who might just wear their products out in the world or – even better – wear their products in the fake world of social media for all to see! Because of these ulterior motives, gifts to influencers should have some strings attached. In their enforcement practices, the FTC broadly defines what may comprise an endorsement. For instance, if an influencer rocks a brand-gifted handbag in an Instagram post and tags the gifting brand, that small act will generally be considered an endorsement by the FTC. When gifting, we recommend that brands include a copy of their influencer guidelines with all gifts. You can print it on beautiful, branded stationery. It doesn’t even have to be ugly! The FTC doesn’t care about that.
Template: Most brands aren’t hiring a small handful of influencers a year; they’re engaging an army to keep their products in consumers’ streams. Because of this, do yourself a favor and put together a solid influencer agreement template. We like a three-part influencer agreement:
a. Part I: Commercial Terms. This should be the most negotiable portion of your influencer agreement and should cover the services being provided by the influencer. We recommend that this be as specific as possible. Some key points to include are:
Provide clear deadlines and submission dates for approvals, posts, and any other deliverables;
Provide clear instructions or story boards for the production of the content and any submissions for pre-approval;
Clearly indicate on what channels the influencer should post;
Include any rights or obligations to boost, re-post, or whitelist;
Whether there are any exclusivity obligations or spacing required between competitor posts; and
Any other obligations such as who is clearing music and other incorporated content.
In addition to the above, this section should provide the fees and payment terms. We beg of you, please do not pay all fees in advance. Give yourself a little leverage by having a final payment to be made only after the influencer satisfactorily completes all the services provided for in the agreement. To minimize negotiation, we recommend including a rate card with standard payment intervals.
b. Part II: Standard Legal Terms. Every effort should be made to ensure that this section stays uniform across all influencers. This section should contain all the choice of law, indemnification, insurance, and limitation of liability magic that your friends in the legal department or your outside law firm provide. This section should also include a representation and warranty by the influencer that they will comply with applicable law and your influencer guidelines and should, in this vein, very clearly describe how you would like the relationship disclosed to the audience. Finally, this section should provide termination and other remedies for failure of the influencer to perform adequately under the agreement.
c. Part III: Influencer Guidelines. This section should be non-negotiable and should lay out, in easy-to-understand terms, the Golden Rules of Influencer Marketing. This should be the guidelines for all influencers to ensure compliance with FTC regulations. We also recommend that you include a broad morals clause in this section, which will allow you to exit in case the influencer takes a life path that doesn’t align with your brand’s desired image (more on morality clauses in a forthcoming blog post).
4. Training Video: Reading isn’t everyone’s favorite. For extra credit, we recommend creating an influencer marketing training video that reiterates and explains your Influencer Guidelines.
5. Pre-Approval / Spot Check: When possible, it is always best to have content pre-approved. That said, we know this isn’t always possible. When that’s the case, someone on your team should spot check the content to ensure compliance.
6. Keep a Scroll List: Brand ambassadors, influencers, and gift recipients should be placed on a monitoring list or, as we call it, your scroll list. Someone at your company should be regularly tasked with scrolling through these influencers’ content for:
Compliance with your Influencer Guidelines (aka the Golden Rules);
Content or actions that may trigger your morality clause;
Compliance with the agreed-upon nature and number of posts; and
Whether or not they are demonstrating brand loyalty or if they are marketing competing products in a way that you may find – let’s say – counterproductive.
It should go without saying that this person should be well versed in your Influencer Guidelines and the details of each contract.
7. Enforce: Having the best paperwork and training materials in the world for your influencer marketing program will do you little good if you are not enforcing the terms you set forth. The FTC will react more favorably to those brands that can demonstrate that they have influencers edit or take down non-complying content and who penalize influencers for failure to comply with truth in advertising regulations.
At Henries PLLC, we love social media (some of us may be addicted) and its beautiful influencers. We can help you set up a program that will allow you to love it too!