Fashion Blogs: The New Paid Advertisement Magazine?
Magazines are a combination of editorial articles and paid advertisements by fashion retailers and brands. The editorials are expected to be an independent opinion reflecting the author or the magazine’s views. Consumers understand the advertisements are paid for by the brands in promotion of their product. What if there was no sharp line between the two, and the consumer could no longer distinguish an ad from an opinion?
The Federal Trade Commission (FTC) is making this argument about the practices of fashion bloggers, which it categorizes as deceptive to the blog followers.1 (See Lord & Taylor’s fashion faux posts) Both fashion blogs and magazines are a fun way to update oneself on the latest trends, styles, and products. The FTC argues that deception, however, is not so fun.2
Lord & Taylor chose fifty trendsetters (influencers) to use their Design Lab Paisley Asymmetrical Dress on Instagram, and paid them thousands of dollars.3 The followers who saw these posts had no reason to believe Lord & Taylor paid for the opinion. Many consumers believe bloggers seek out the items they promote on their own, but this is not the case anymore.
Under the Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising,
[A]n endorsement means any advertising message (including verbal statements, demonstrations, or depictions of the name, signature, likeness or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser.4
While the FTC’s Guides do not carry the force of law, the court in United States v. Mead Corp. acknowledged that “[a]n agency’s interpretation may merit some deference whatever its form, given the specialized experience and broader investigations and information available to the agency, and given the value of uniformity in its administrative and judicial understandings of what a national law requires.”5 Thus the Guides are entitled to deference because of the persuasiveness.6 Nonetheless, Compliance with the FTC Guides is important because penalties may include fines, business may be significantly interrupted by time lengthy and costly investigations, and there are public relations repercussions that arise from being found not in compliance with the agency.
There are three rules in the Guides that are applicable to fashion brand influencer campaigns where the influencer is not a consumer, expert, or organization.7 First, “endorsements must reflect the honest opinions, findings, beliefs or experience of the [influencer].”8 Second, endorsements “may not convey any express or implied representation that would be deceptive if made directly by the advertiser.”9 Third, endorsements must fully disclose any connection between the brand and the influencer “that might materially affect the weight or credibility of the endorsement.”10
The agreement between the FTC and Lord & Taylor defined the disclosure requirements more plainly by clarifying “clearly and conspicuously.”11 This definition illuminated that the disclosure must be made in the means of the communication (i.e. if visual then visual, if audio then in audio); it must stand out by size, contract, location, and length of time it appears; must not be contradicted by any other communication; and must be unavoidable and in close proximity if using an electronic medium (no scrolling or hyperlinks to find disclosure).12 It is likely that every picture where a promoted item is included must at least mention the word “ad” or “paid advertisement” which must be placed near the endorsement. It is not acceptable to make a consumer click on a link to find the disclosed relationship, scroll down, or find it on another page of the site.
Bloggers and companies both may be held responsible. Therefore, it will be important for companies to coach their influencers on following the guidelines. This will help to avoid liability in the future and to avoid any influencing that may be deemed deceptive.
Aditi Jhaveri. Lord & Taylor’s fashion faux posts. 15 Mar 2016. Federal Trade Commission: Consumer Information. https://www.consumer.ftc.gov/blog/lord-taylors-fashion-faux-posts [http://perma.cc/2R4Y-KRTY].↩
16 C.F.R. § 255.0(b) (2012).↩
United States v. Mead Corp., 533 U.S. 218, 234-35 (2001) (quotation marks and internal citations omitted).↩
FTC v. Garvey, 383 F.3d 891, 903 (2004).↩
16 C.F.R. §§ 255.1(a), 255.5 (2012).↩
16 C.F.R. § 255.1(a) (2012).↩
16 C.F.R. § 255.5 (2012).↩
Lord & Taylor, LLC., 152 3181 F.T.C. (2016) (agreement containing consent order).↩