Is That Tweet Legal? Influencer Marketing Compliance Considerations

As influencers continue to engage closely with healthcare and digital health brands — and the lines between marketing, communications and education continue to blur — understanding the rules of engagement and having defined social media guidelines in place are imperatives.

We asked one of the industry’s Vital Voices, Po Yi — a partner at Manatt, Phelps & Phillips, LLP, focused on media, advertising and marketing — to weigh in on the questions she’s hearing most from clients today, and how she is helping guide healthcare organizations safely through the influencer marketing and engagement labyrinth.

1.   As a partner at Manatt — formerly serving as chief advertising counsel of American Express — you have vast experience advising clients on a wide range of compliance considerations for marketing and advertising on social, digital and traditional media platforms. What questions are you hearing most from clients today? Biggest areas of concern?

Everyone wants to do influencer marketing and generally knows that there are legal and brand risks if not done right, but they’re not quite sure what they are and how to manage the risks. The reason that marketers are engaged in influencer marketing is to tap into the social sphere of influencers, and use the influencers’ authentic voice to communicate with the influencers’ fans. But how can marketers allow the influencers to do what they do best—i.e., post content on social media—while maintaining some oversight to make sure the such postings do not violate any applicable laws or otherwise create legal and brand risk for the brand? How much control should influencers have over their social media activity?   

2.     How have the rules and regulations surrounding influencer relations evolved in recent years?

Almost everyone today seems to have at least a basic knowledge of influencer marketing compliance. Most understand that when a company is working with an influencer–and that person is paid, receives something for free, or otherwise incentivized to endorse a product – that influencer should disclose that information. There has also been a lot of traditional media coverage on the topic.

What a lot of people do not know, however, is that even non-paid relationships should be disclosed, such as family, employment, ownership and even agency-client relationship. For example, the mother of the proprietor of a wellness center raves about a treatment that she received at the center. She was not asked by the proprietor to discuss the wellness center, nor did she receive a free treatment just because she is the mother of the proprietor. Should she disclose the family relationship in her social post? Yes, even though it is a non-paid connection, it should still be disclosed.

Or, a PR agency was engaged to promote a new hospital that just opened and an employee of the agency posts a link to the press release about the launch. The employee should disclose the agency-client relationship, even if he was not paid directly or required to post the link as part of his job.  

The Federal Trade Commission (FTC) spells this out in its FAQ publication called The FTC’s Endorsement Guides: What People Are Asking – that if there’s a connection between an endorser (influencer) and the marketer that consumers wouldn’t expect, and it would affect how consumers evaluate the endorsement, then that connection needs to be disclosed.

3.     Could we look at specific example? Say a patient shares something positive on social about their experience at a hospital, and the hospital wants to boost that tweet with paid social, what are the parameters of approval and disclosure there?

Disclosure only comes into play when there is a financial relationship or another material connection involved. If a patient says something nice about a hospital without any incentive or other connection (such as family or employment), there is no disclosure issue. However, if a patient tweets something positive and the hospital RTs it or puts paid dollars behind it, first they need to get the patient’s permission – it’s a permission issue, not a disclosure issue. Even if a patient tags the provider in the social post, if the provider uses it to develop an ad or boosts with paid media, the amplification of the message will make it necessary for the hospital to obtain the patient’s permission. Additionally, the hospital has the obligation to make sure what the patient said about the hospital is actually true and substantiated.

The main takeaway is that you must disclose any material connection, financial or otherwise, between you and the product, service or company you are endorsing. At the heart of this and other regulatory requirements and guidance is making sure that whatever message the speaker is trying to convey is given proper weight by those on the receiving end. It’s all about avoiding unfair and deceptive practices, by material misrepresentation or omission.  

4.     What are some of the common mistakes or compliance oversights you’re seeing companies make when it comes to user-generated content and influencer marketing?

I’m constantly creating social media guidelines for clients that spell out when and how to disclose. But simply having written guidelines is not enough. It’s important to create a compliance program that also includes training, monitoring, and enforcement.

It’s also important to make sure that the company’s compliance program flows through its agency or media partner that might be managing the influencer marketing campaign. The FTC has made is clear that everyone who is involved with an influencer campaign, including influencers, brands and agencies, has the responsibility of avoiding any unfair and deceptive practices, including failure to make the necessary disclosure of the material connection.  

Po Yi provides cross-purpose, multidisciplinary legal counseling on transactional and regulatory matters in advertising, entertainment and digital media, with over two decades of experience in private practice and in-house. Learn more about Po and see more #VitalConversations here.

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