The FTC’s proposed updates to the Endorsement Guides provide that influencers may be liable for their misleading or unsubstantiated statements regarding a product’s performance or effectiveness when their representations are inconsistent with the influencer’s personal experience, or were not made or approved by the brand and go beyond the scope of the influencer’s personal experience. Brands may similarly be liable for such misleading or unsubstantiated statements where there is a connection between the brand and the influencer. To help illustrate this point, the FTC provided the below example:
A skin care products advertiser hires an influencer to promote its products on the influencer’s social media account. The advertiser requests that the influencer try a new body lotion and post a video review of it. The advertiser does not provide the influencer with any materials stating that the lotion cures skin conditions and the influencer does not ask the advertiser if it does. However, believing that the lotion cleared up their eczema, the influencer says in their review, “This lotion cures eczema. All of my followers suffering from eczema should use it.”
In this scenario, the advertiser and the influencer could be subject to liability for misleading or unsubstantiated representations made through the influencer’s endorsement.
Key Takeaways for Influencers:
>> Make sure you have a reasonable basis for your claims.
>> Limit your claims to your personal experience.
Key Takeaways for Brands:
>> Provide guidance to your influencers to ensure their statements are truthful and substantiated.
>> Monitor your influencers’ compliance and take steps necessary to remove any noncompliant content.
If you have questions on what this could mean for your ad campaign, please reach out to Lauren Carey.