In February 2021, SAG-AFTRA’s National Board voted to approve a new Influencer Agreement.  But, the announcement included few details, leaving many Brands and so-called Influencers to wonder what’s the deal?

To date, SAG-AFTRA has not released the actual long form agreement covering Influencers, but it has posted an Influencer Agreement Fact Sheet online here.  The Fact Sheet makes clear that, for now, the Influencer Agreement is extremely narrow in reach.  Indeed, it all but places the entire onus of documentation, compliance, and pension and health contributions solely on the Influencer.  Therefore, the Influencer Agreement will allow Influencers to earn union eligibility and make their own contributions toward their own benefits.  Here are the key points for Brands and Influencers to be aware of:
Continue Reading Brands And Influencers Need To Know About SAG-AFTRA’s New Influencer Agreement

Brands and influencers could unknowingly be violating the FTC’s endorsement rules by using TikTok to promote paid posts and sponsored content without including the necessary disclosures. TikTok offers native direct download and social sharing tools that enable users to share TikTok videos on other social media platforms without the caption and hashtags from the original video description, which may include disclosures that were included as required by the FTC to identify paid advertising.
Continue Reading Native TikTok Tools May Create Liability for Brands and Influencers

In April 2018, the Federal Trade Commission (“FTC”) wrote to Florida-based Teami LLC (“Teami”), a Florida-based producer of Teami tea and skincare products, reminding it of the requirement set forth in the FTC’s Endorsement Guides, that any material connections, including compensation, between advertisers and internet end-users need to be disclosed “clearly and conspicuously” to consumers.  The letter noted that endorsers should use unambiguous language and consumers should be able to notice the disclosure easily without having to look for it; and that because consumers viewing posts in their Instagram feeds typically see only the first few lines of a larger post unless they click “more,” endorsers should decide any material connection above the name look.[1]
Continue Reading FTC Cracks Down On Deceptive Social Media Campaign By Teami LLC

Enter for a chance to win!  Advertising lawyers are forever reminding their clients to be clear that when a promotion is a sweepstakes, messaging needs to be clear that it is a random drawing and not a giveaway.  Recently, fashion brand Draper James reminded us all why that distinction is so important.
Continue Reading Sweepstakes or Giveaway? Make Sure Your Advertising Is Clear!

On November 5, 2019, the United States Federal Trade Commission (“FTC”) issued a guide entitled “Disclosures 101 for Social Media Influencers”[1] and a video “Do you endorse things on social media?” to alert influencers to the laws governing endorsement or recommendation of products or services and provide social media influencers with “tips on when and how to make good disclosures.”[2] The FTC’s written guide states that “[a]s an influencer, it’s your responsibility to make these disclosures, to be familiar with the Endorsement Guides, and to comply with laws against deceptive ads.”[3] The guide explains to influencers that disclosures must be made when an influencer has a “material connection,” that is “any financial, employment, personal, a family relationship with a brand” and that receiving “free or discounted products or other perks” requires a disclosure.[4] In addition, the FTC notes that “tags, likes, pins, and similar ways of showing you like a brand or product are endorsements.”[5] The FTC guide also instructs influencers that “[i]f posting from abroad, U.S. law applies if it’s reasonably foreseeable that the post will affect U.S. consumers. Foreign laws might also apply.”[6] The FTC notes that disclosures must be in simple and clear language that is placed “so it’s hard to miss” and should be placed with the endorsement itself. Disclosures that “appear only on an ABOUT ME or profile page, at the end of posts or videos, or anywhere that requires a person to click MORE” will not be sufficient.[7] The FTC gave the following guidance with regard to endorsement posts in photographs, video and live streaming:
Continue Reading FTC’S New “Disclosures 101” Publication And Video Is A Shout Out To Influencers

It is no secret that the world of fashion is full of surprises. On Monday, June 4, 2018, Kim Kardashian West won the Council of Fashion Designer of America (“CFDA”) first-time Influencer Award and commented: “I’m kind of shocked I’m winning a fashion award when I’m naked most of the time.”[1] Fashion advertising and marketing rely more and more upon social media and influencers for the ability to connect with consumers in an authentic manner.[2] As a result, fashion models and celebrity influencers are in high demand. Now, a new group of unique model influencers are taking the fashion world by storm. Yet, it is unlikely that any of these new influencers will ever win the CFDA Influencer Award.
Continue Reading Kim Kardashian West Won the First CFDA Influencer Award: Will A CGI Supermodel Be Next?

In our previous blog post, “#CAUTION: FTC Ramps Up Enforcement of and Education on Social Media Influencer Disclosure Requirements,” we discussed a recent Federal Trade Commission (the “FTC”) settlement and the FTC’s increased focus on misleading advertising and endorsements on social media platforms.

The complaint, brought by the FTC’s Bureau of Consumer Protection (“BCP”), was against two online gaming influencers, Trevor Martin (a/k/a TmarTn), Thomas Cassell (a/k/a TheSyndicateProject, Tom Syndicate, and Syndicate), and their corporation CSGOLotto, Inc. (“CSGOLotto”).  The BCP alleged that Martin and Cassell (1) did not disclose their ownership in CSGOLotto, (2) were paid to endorse the online platform’s gambling service and (3) asked other gaming influencers to promote the service in exchange for payments between $2,500 and $55,000 without making them disclose such payments. In response to the complaint, neither Martin, Cassell, nor CSGOLotto admitted or denied the allegations, but instead agreed to enter into an Agreement Containing Consent Order with the FTC (the “Order”). The Order prevents them from misrepresenting an endorser of the product or service as an independent user or ordinary consumer of same and requires them to clearly and conspicuously state if the endorsers have a material connection to the product or service.
Continue Reading Paid to Post? #FTCAdvice for Influencers

In 2017, being a “social media influencer” can mean big bucks. Companies are increasingly eager to pay individuals with large social media followings substantial sums to promote products in the hopes of reaching millions of potential customers quickly. And consequently, the Federal Trade Commission (the “FTC”) is paying attention more than ever. If you’re being paid to promote a product on your Instagram account, the FTC wants you to let the world know. . . or else.
Continue Reading #CAUTION: FTC Ramps Up Enforcement of and Education on Social Media Influencer Disclosure Requirements

In our previous blog post, “Brands Beware!!! FTC Scrutinizing Influencer Posts for Compliance with Endorsement Guides,” we reported that the Federal Trade Commission (“FTC”) had issued more than 90 letters to brands and influencers, making it clear that it is paying close attention to influencer-based marketing.  More recently, the letters have been made publicly available, providing valuable insight into the types of disclosures that the FTC considers unacceptable or inadequate.
Continue Reading A Deeper Dive Into the FTC Crack-Down on Social Media Influencers: What You Should Know Before You Post

Khloe Kardashian is the latest Kardashian to find herself in court over her activities on social media. The youngest Kardashian sister was sued by a photographer for copyright infringement in Xposure Photos UK Ltd v Khloe Kardashian et al, 2:17-CV-3088 (C.D. Cal). Xposure alleges that Ms. Kardashian posted a photo it owned on her Instagram without permission and without the copyright attribution notice included on the original. For brands, celebrities, influencers, and others who use social media, particularly to make money or for promotion, this serves as a good reminder that all rights in any photographs, videos, and other content they post on social media must be cleared.
Continue Reading The Kardashians Can’t Keep up with Copyright Law

In response to a petition from a coalition of consumer groups last year complaining about the need for disclosures by social media influencers, the FTC recently announced on April 19, 2017 that it had issued more than ninety letters reminding influencers and brands that “if there is a ‘material connection’ between an endorser and the marketer of a product – in other words, a connection that might affect the weight or credibility that consumers give the endorsement – that connection should be clearly and conspicuously disclosed, unless the connection is already clear from the context of the communication containing the endorsement.” The FTC explained that material connections could “consist of a business or family relationship, monetary payment, or the provision of free products from the endorser.” A copy of the form of the letter, which explains that clear and conspicuous disclosures are required can be found here.
Continue Reading Brands Beware!!!! FTC Scrutinizing Influencer Posts for Compliance with Endorsement Guides