“We are seeing see interactions with brands online in a way we didn’t see before,” said moderator Stephen Coates of Twitter in the U.S.
Brands are also using social influencers much more than ever before. They are keen to reach the millions of followers of celebrities’ social media accounts (this includes pets – a cat called Nala has 2.8 million followers on Instagram, for example). “Brand managers are getting more sophisticated as well as the consumers,” said Ann Chen of Abbott Laboratories in the U.S.
Chen said it is vital to be upfront about what has been paid for: “Some people say: ‘I don’t want influencers to disclose, I want it to look natural.’ But you did give them something.”
The Federal Trade Commission in December issued a guide on native advertising, which it defined as “advertising and promotional messages integrated into and presented as non-commercial content.”
Under FTC rules, an influencer must disclose if they have received compensation to promote a brand on social media. “The advertiser has to make sure the influencer is doing that,” said Chen. “The burden is on the advertiser, not the influencer.” Brands must make sure a post is amended if it is not correct. Chen suggested payment should be withheld until the influencer has met the terms of their contract, which should clearly specify what the celebrity’s responsibilities are. Chen added that the rules also apply to agencies and vendors, so they should be closely monitored as well.
Barry Benjamin of Kilpatrick Townsend & Stockton in the U.S. said that it is tough to train young people within companies and agencies to understand what must be disclosed and why. He said there was previously “huge resistance” to including #ad in any post, but that this had recently changed.
“It was like the switch was flipped,” Benjamin said. “Pretty much all influencers now include #ad and nobody cares. So when you are talking to young people, just tell them nobody cares. It’s a new world.”
One recent example where disclosure was not given came in March when Lord & Taylor settled with the FTC for paying 50 online fashion influencers to post Instagram pictures of themselves wearing the same paisley dress, but failed to disclose they had given each influencer the dress, as well as thousands of dollars, in exchange for their endorsement. This is being used as a cautionary tale for brands in training for social media.
Chen noted that pharmaceutical companies have particular challenges, with regulations requiring they provide fair balance, adequate substantiation and effective disclosures, and also avoid off-label use and drug claims. This can be tricky given the lengthy disclaimers they normally need and the limited space on social media. Other questions are what the brand should do if a blogger mentions a non-authorized use of a product or whether to retweet or like user-generated comments that do not conform to regulations.
One recent example came last year when the U.S. Food and Drug Administration found celebrity Kim Kardashian’s endorsement of a morning sickness drug on Instagram was “false and misleading,” did not include risk information, omitted material facts and suggested the drug was safer than had been demonstrated. She reposted a corrected post including the hashtag #CorrectiveAd.
During the session Leanne Stendell of YUM! Brands in the U.S. also discussed emojis and whether they are copyright protectable. Another issue is branded emoji. “Unicode will never approve a branded emoji,” she said. “One way to get around that is to use stickers, but what if users do something offensive with them or combine them with a competitor’s content? This is the
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