Social Media Marketers Must Provide Disclosure

Advertisers who make claims about their products on social media sites like Twitter, Facebook and Pinterest need to be mindful of the fine print they use, or forget to use, in their postings and provide disclosure.

Last week, the National Advertising Division, an investigative unit of the Advertising Self-Regulatory Council, reviewed photographs that Nutrisystem had “pinned” on Pinterest boards and determined that the photos were testimonials requiring disclosures. The photographs in question showed people who said they had lost weight by using Nutrisystem, but there was no disclosure that the people had been paid or that the results of their weight loss were not typical. Instead, the photos simply said, for example, “Christine B. lost 46 lbs on Nutrisystem.”

The self-regulatory council conducts independent reviews of marketing and advertising on all platforms, including social media. The group often responds to complaints brought by competing marketers who accuse others of violating advertising guidelines, like making unsubstantiated claims. Following a review, marketers often comply with requests to modify or settle the claim. If they refuse, the claim can be sent to the Federal Trade Commission for further review.

Andrea Levine, the director of the National Advertising Division, said the organization tends to monitor advertising in categories like health and nutrition, dietary supplements and cosmetics closely. “Those are categories where companies are not watching each other as closely and bringing their own challenges,” Ms. Levine said.

In the Nutrisystem case, the company immediately agreed to add disclosure statements to its photographs, Ms. Levine said. “As long as their stories are truthful and as long as the advertiser discloses what is the normal weight loss range, which is 1 to 2 pounds a week, that lets the consumers put the success story in context,” Ms. Levine said.

Advertising on Twitter and Facebook is also monitored closely by the investigative units in the Advertising Self-Regulatory Council. In November 2011, for example, 1-800 Contacts challenged claims made on Facebook by a competitor, Coastal Contacts.

Coastal Contacts encouraged Facebook users to “like” its page and in doing so, promised them a free pair of glasses. It also promised discounts of 70 percent on contact lenses. The rival, 1-800 Contacts, said that Coastal Contacts did not disclose the shipping and handling fees associated with the offer for free glasses and that not all styles of glasses or lenses were available in the offer.

In addition, the company contended that users who “liked” the Coastal Contacts page in order to get the free glasses were inadvertently endorsing the company.

The National Advertising Division ruled that all claims for free merchandise must clearly disclose any hidden fees and conditions at the outset of the offer, including increasing the font size of the message that “conditions apply.” Facebook likes can be interpreted as “conveying a message of general social endorsement,” the ruling said.

“If what you are offering them in exchange for likes is not real, then those likes were obtained through deceptive advertising,” Ms. Levine said of the ruling.

One of the first social media cases taken up by a related organization, the Electronic Retailing Self-Regulation Program, involved Twitter. In July 2010, the program recommended that Liquid HCG Diet discontinue using testimonials that it made on Twitter — such as, “Becky and husband lost 14 lbs in 2 days!” — and claims on Facebook that said “Lose around a pound a day” and “Lose 30 lbs in a month, it’s easy and quick!”

Twitter now offers advertisers options like promoted tweets that make it more clear to users which posts are advertisements and which are authentic content.

“It’s kind of a reminder to advertisers that even though the medium changes the rules stay the same,” Ms, Levine said.

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10 Things To Know About Liability In The Social Media World

With the explosion of websites like Facebook, Twitter and LinkedIn, in-house counsel should give careful consideration to the unique problems social media presents, how it affects the workplace, and how to address employees’ and third parties’ social media usage.

As with the rise of the Internet and blogs, existing employee and intellectual property issues play out in the social media world in sometimes surprising ways, creating new challenges and problems for in-house counsel. Social media has the capability to dramatically increase these problems and challenges by providing a much larger, well-connected audience. The following are some specific, brief considerations that in-house counsel should analyze and address with company employees.

1. Secrets are gone in a flash (or click).
2. Employee posts in social media may be protected speech
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3. Employee posts may subject the company to liability.
4. Employee posts may prompt federal administrative action.
5. Social media provides an exponentially bigger, real-time audience for traditional employee-relations problems.
6. Using social media as a recruiting tool can backfire.
7. Registering user names is a cost-effective, protective measure.
8. Implementing social media policies is becoming a best practice
9. The best defense is a good offense
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10. Social media adds litigation considerations.

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Social Media and Disclosures, Learning from the Hyundai Case

Hyundai avoided a collision with the Federal Trade Commission on the treacherous social media marketing course. The FTC suggested yesterday that its decision not to recommend enforcement action against Hyundai for a blogger outreach effort designed to build buzz around the brand’s Super Bowl XLV ads could be a lesson for marketers.

Three rules of thumb for social media marketers:

  1. Mandate a disclosure policy that complies with the law
  2. Make sure people who work for you or with you know what the rules are
  3. Monitor what they’re doing on your behalf

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Social Media, Ethics, Disclosures and FTC

Andy Sernovitz, shares his recommendations on how to stay safe and ethical in social media covering the latest FTC updates, the fundamentals of proper disclosure, and how to make sure your agencies and vendors comply with your standards.

Disclosure Best Practices Toolkit (PDF)