Dealing with social media influencers—USA
Produced in partnership with Christiane C. Kinney and Heidy Vaquerano of Wolf, Rifkin, Shapiro, Schulman & Rabkin LLP
Dealing with social media influencers—USA

The following IP guidance note Produced in partnership with Christiane C. Kinney and Heidy Vaquerano of Wolf, Rifkin, Shapiro, Schulman & Rabkin LLP provides comprehensive and up to date legal information covering:

  • Dealing with social media influencers—USA
  • What constitutes influencer ‘endorsement’ in the United States?
  • Disclosure requirements
  • How does brand control impact disclosure requirements, if at all?
  • Sanctions and oversight for improper or inadequate disclosure
  • Ownership rights to sponsored content
  • Protection from inaccurate brand messaging
  • Key provisions in Influencer Agreements

This Practice Note is aimed primarily at brands wanting to use influencers (or other talent) for particular social marketing campaigns and advertising promotions in the USA. It covers: what constitutes influencer ‘endorsement’ in the United States, disclosure requirements, sanctions and oversight for improper or inadequate disclosure, ownership rights to sponsored content, and key provisions in United States influencer agreements.

What constitutes influencer ‘endorsement’ in the United States?

The laws pertaining to the influencer brand relationship in the United States are codified in 15 U.S.C. §§ 41–58 (and mirrored in the Electronic Code of Federal Regulations, §§ 255–255.5).

In the United States, the laws surrounding how social media influencers should interact publicly with consumers with respect to brands and companies can be found in the Federal Trade Commission Act (FTC Act), 15 U.S.Code, § 45. Section 5(a) of the FTC Act prohibits ‘unfair or deceptive acts or practices in or affecting commerce’ (15 U.S.Code, s 45(a)(1)).

An act or practice is considered ‘unfair’ where it:

  1. causes or is likely to cause substantial injury to consumers

  2. cannot be reasonably avoided by consumers, and

  3. is not outweighed by countervailing benefits to consumers or to competition

Public policy, as established by statute, regulation, or judicial decisions may be considered with all other evidence in determining whether an act or practice is unfair.

An act or practice is ‘deceptive’