In a new decision about influencer advertising, the Electronic Retailing Self-Regulation Program (ERSP) has recommended that Alo Yoga modify its Instagram posts and do a better job monitoring its influencers to ensure their compliance with the FTC Endorsement Guides. The Decision provides a helpful summary of both influencer and brand obligations.
ERSP had examined the advertising of Alo Yoga, which sells yoga apparel, accessories and classes. Alo Yoga advertises its products and services through social media, including on Instagram. Part of this advertising entails the use of influencers who receive clothing and money from Alo Yoga in exchange for posting about the company on their social media accounts. ERSP identified about 60 social media accounts of influencers who appeared to have a connection with Alo Yoga. The posts featured the influencers wearing Alo Yoga clothing in photographs and videos, and comments about the influencers' experiences with the brand. The posts also mentioned or "tagged" Alo Yoga's Instagram account @aloyoga and other Alo Yoga accounts.
ERSP's primary concern was that many of the posts did not include a "material connection" disclosure and that they therefore potentially conveyed the message to viewers that the posts about Alo Yoga were "spontaneous content created by the influencer as opposed to being paid endorsements." ERSP noted that an "individual does not have to say something positive about a product for a social media post to be considered an endorsement covered by the FTC Act. Simply posting a picture or video of a product, or, similarly, tagging a brand in the post, could convey the message that a person likes and approves of a product, and, therefore, may be an endorsement." Such posts, therefore, must include a clear, conspicuous and unambiguous material connection disclosure (i.e., that the influencer is being compensated for her post). Where and how? Before the "more" button; not with a confusing abbreviation (like "sp"); not buried in a cluster of other hashtags; and in the same language as the rest of the post.
ERSP's Decision underscores the responsibility of the influencers themselves to ensure that they include the right disclosures in their posts, and the responsibility of brand itself. Not only must the brand take care when re-posting influencer content to ensure it includes the correct disclosures, but the brand must design and conduct compliant influencer programs. ERSP noted that, per FTC Guidance, brands' influencer programs should "explain to members of the network what they can/cannot say about the products; instruct members of the network on their responsibilities for disclosing their connections to the advertiser; periodically search for what members of the network are saying; and follow-up if there are questionable practices." In other words, advertisers must not only have good guidelines for influencers they engage, they must take steps to ensure that the guidelines are followed.
One interesting final note: The advertising at issue had been referred to the FTC in 2018. The Advertiser then returned to ERSP (presumably at the urging of the FTC) for a review of its claims.
ERSP Report #429