Is Your Digital Marketing Program Putting You At Risk? Why Brands Need to Consider The Ad Claims Universe

While the immediacy of digital marketing offers major opportunities, it also introduces risk for brands with its difficult-to-control nature. Learn more in this article.

While it’s crucial to let influencers embrace their creativity and develop authentic, relevant content, companies must balance that with protecting their brand.

Sure, influencer content can help boost your brand’s reach and favorability. However, it can inadvertently put your credibility at risk and create legal landmines if informal spokespeople make unverifiable claims. And the consequences can be immediate.

This article teaches marketers what they need to know to maximize the benefit of influencer relationships while minimizing the risk of damage. The article highlights:

• The real low-down about ad claims
• How to help influencers (and Your Brand) stay on the right side of the law
• Reasons why your brand’s credibility should always remain at the core of any marketing move you make

Content Summary

Ad Claims 101
Types of Claims
Helping Influencers (and Your Brand) Stay on the Right Side of the Law
A Finished Product to Be Proud Of

Leveraging advertising claims has offered a competitive advantage for centuries. Until recently, these claims appeared on packaging and in “traditional” marketing channels like print, billboards, and broadcasts. Given their more permanent nature, the development of these materials ideally happened over months of production with vetting and approval by a team including everyone from marketing executives to legal counsel.

Fast forward to today’s reliance on digital marketing. While the immediacy of this medium offers bountiful opportunities, it also introduces risk for brands with its difficult-to-control nature. That is especially the case as brands become more reliant on influencers and focused on reaching their massive — and tremendously loyal. According to one recent report, nearly three-quarters of marketers will use the power of these tastemakers in 2022, banking on their ability to drive sales with engaging content.

Yet, while influencer content can help boost your brand’s reach and favorability, it might inadvertently put your credibility at risk and create legal landmines if spokespeople make unverifiable claims. The consequences can be immediate; in today’s competitive environment, the consequences for a brand can be immediate and significant as your competitors carefully scrutinize your brand and are prepared to jump at any misstep.

“While misleading or confusing messages have always had the potential to be detrimental to the brand, what’s different now is the speed at which it all happens. Whereas there used to be more time for brands to review material and be their own brand police, today marketers find themselves abdicating some measure of content control by partnering with influencers.” – SCOTT THOMPSON

Vice president of operations for ChefsBest, a food and beverage industry marketing resource that helps brands make trusted taste-related content.

While it’s crucial to let influencers embrace their creativity and develop authentic, relevant content, you must balance that with protecting your brand. Here’s what marketers need to know to maximize the benefit of influencer relationships while minimizing the risk of damage.

Ad Claims 101

WHAT IS A BRAND’S RESPONSIBILITY?

We have all heard ad claims that sound far-fetched – non-specific positive statements that may exaggerate the non-objective aspects of a product and service and which most consumers likely gloss over. These come under the label of “puffery” and are harmless, says Pamela Deese, a partner at law firm ArentFox Schiff who focuses on brand management and advertising. The law is geared to protecting consumers from deceptive advertising.

The problem arises when your brand uses what the Federal Trade Commission (FTC) considers an “express claim,” where you directly make statements about your product (or services) features or make an “implied claim,” which is made by inference. “The FTC is clear: any time a claim is made – even if it is made by someone else, like an influencer on behalf of an advertiser – there must be a reasonable basis for the claim, which means that the advertiser must possess appropriate substantiation,” explains Deese.

In other words, saying you have the “best-tasting” homebrewed coffee could put you in hot water. But a program like the “ChefsBest Medallion” can comply with the need for substantiation, Thompson explains.

“ChefsBest will provide your brand with the data it needs to corroborate claims through rigorous testing that is objective rather than subjective. For example, it can provide documentation confirming ‘award-winning taste,’ accompanied by an in-depth product evaluation from our Master Tasters and Sensory Director. Validating the claims with this type of proof allows brands to comply with the FTC’s requirements.” – SCOTT THOMPSON, Vice president of operations for ChefsBest

Types of Claims

THERE ARE THREE TYPES OF ADVERTISING CLAIMS:

Express Claims

According to the Federal Trade Commission (FTC), an express claim is a claim directly made in the ad that suggests a basis for the claim.

For example:

• “Rated best toothbrush by dentists”
• “Most legroom in its class”
• “Smoother hair in 3 applications”

Implied Claims According to the FTC, an implied claim is one made indirectly or by inference.

For example:

• “Each serving of Frothy protein shake contains one full banana-so you have the potassium your body needs.”
• Implied claim: One serving of Frothy gives you your daily recommended value of potassium.

Puffery Claims Puffery is a non-specific, favorable statement that cannot be proven, and is not likely to be relied upon by consumers. Often these claims are hyperbolic in nature but can open up a grey area of what could be potentially an express or implied claim.

For example:

• “The world’s most refreshing beer”
• “Best cup of coffee in the universe”

WHEN DO CLAIMS COUNT?

The short answer: always. While brands understand the ease of challenging the claims they make in traditional advertising, they might not realize that social media content – even when created by influencers who are endorsing a product– is subject to the same ad claim regulations.

And that can lead to hurdles if influencers are not clear about their responsibility. In fact, ambassadors may be most apt to veer into precarious territory when they post digital content they perceive as temporary – say Snapchat or Instagram stories that quickly disappear. It is easy to assume it does not need the same stringent substantiation as a post designed to be more permanent. Influencers may also be inexperienced and not appreciate the legal requirements imposed upon them when endorsing a product or service. “The bottom line, influencers cannot make statements (claims) about a product or service that the advertiser/brand owner would not be able to make because of an absence of substantiation,” Deese explained.

That is why it is important to impress upon them that digital records are forever, even if they seem fleeting, advises Thompson, and why they need to know what they can and cannot say. “While the post may have been displayed for a short duration, that is not to say it will not live on, having been preserved in a screen grab or by a spider from an internet archive like the Wayback Machine. If an influencer really should not make a claim, it does not matter that it was made as part of their story,” he cautions.

Helping Influencers (and Your Brand) Stay on the Right Side of the Law

With so much at stake, creating a process that will help your brand maintain its stellar reputation is crucial. These tactful tips should allow you to enjoy the advantages of working with influencers while avoiding common pitfalls.

CHOOSE YOUR INFLUENCER RELATIONSHIPS WISELY.

In her previous role as director of social media at Red Bull, Shiloh Uhlir helped create and build out the brand’s prominent influencer program. Her first step to ensuring a given personality would serve as a positive force for the brand involved going the extra mile during the vetting stage. This should include more than a passing understanding of their outward social voice and persona, but delving further into their posts to read comments and responses, as well as scrutinizing what they followed or shared from other media.

“To make sure they were brand-aligned, we needed to thoroughly investigate their presence in order to determine their authentic identity as compared with what they choose to curate,” she notes. “Building trust from the start helps eliminate a lot of issues down the road.” Basically, you want to avoid a lack of authenticity in your influencer when they endorse your product as they will be viewed as an extension of your brand.

This process includes confirming that the influencer actually has used your product. “Unless they have used it and share their honest opinion, (e.g. they cannot think it is a terrible product and claim it is terrific), they cannot talk about it as an endorser,” Deese says. To that end, Uhlir even suggests having a prospective ambassador create a testimonial video about their experience with your product – not for use per se, but to verify they have a message that positively reflects the brand and accurately before forging a creative partnership.

ACCURATELY COMMUNICATE YOUR BRAND STORY AND OTHER RELEVANT INFORMATION.

Before launching any marketing initiatives, Deese recommends gathering the entire team to consult about what the marketing piece will say.

“Talk to the research and development (R&D) team to confirm the market research, science and other forms of substantiation you have to determine what claims you can make from existing data and how you want your brand represented.” – PAMELA DEESE, Partner at ArentFox Schiff

This step harkens back to controls such as style guides and brand guidelines used prior to the current reliance on the digital landscape. But rather than lengthy documents, Thompson suggests shifting your communication method to ensure easy accessibility and a fit with today’s fast-paced environment.

That is a key benefit of integrating the ChefsBest’s award into your program, he notes. “Saying your product is the winner of the ChefsBest Medallion delivers that objective claim of quality and taste in a quick, structured, coherent message that is easy to include and easy to validate.”

Once aligned on your brand’s ideal positioning, Uhlir encourages conducting brainstorming with the personality to ensure the end result will resonate with their audience. “You want to really understand their pillars of authenticity and then bake the brand into what they are already talking about versus pushing the brand. At Red Bull, we knew it was far more important to obtain product placement in an authentic way rather than have them talk about exact attributes.”

When supplying partners with the resulting brief, detail what you are looking for and then send a variety of examples highlighting how you prefer the brand and product to appear, including terms or verbiage to avoid. Then, sit back and let them run with the creative.

“Two influencers could potentially have received the same brief, yet we would have really different outputs based on them being authentic to their persona.” – SHILOH UHLIR, Prior director of social media at Red Bull

Other brands might want more control to ensure this tastemaker content aligns with the rest of their marketing campaign. In that case, Deese suggests looping in the legal team to draw up contracts that require brand review prior to posting and mechanisms for quickly removing problematic claims or statements or terminating the agreement in the event the influencer’s activities do not reflect positively on the brand. It is also advisable to reaffirm the number and types of posts in progress and the wording the influencer can use that includes appropriate substantiation.

EDUCATE AMBASSADORS ON APPROPRIATE LEGAL REQUIREMENTS.

Working with influencers is just like working with any other endorser or sponsor, even if the exchanges may seem informal, points out Deese.

“Anytime a brand is compensating someone – whether in cash or product – the relationship is governed by legal rules, in addition to the brand’s preferences about what they want said about their product.” – SCOTT THOMPSON, Vice president of operations for ChefsBest

And while the most prolific of these personalities might be aware of the need to clearly disclose the relationship, others may not have the same level of sophistication. “For everyone’s sake, the brand should help educate influencers regarding the rules that apply,” Deese explains, referring both brands and influencers to guides developed by the FTC. This includes one designed specifically for social media influencers who act as endorsers or give testimonials. “Give them examples of how to properly disclose the relationship – for example, using disclaimers like #sponsored but ensuring it is not buried in 50 hashtags.”

Many influencers also may not realize their own personal liability, notes Uhlir. “In the early days of social media, the idea was that if the brand was paying, they were the responsible party. However, now you see the FTC actually sending cease-and-desist letters to both the brand, creator, and influencer/endorser. If an anomaly is found, It is important to underscore that it is the influencer’s personal accountability on the line as well.”

The good news is that the perceptions around disclosures have changed and in no way minimize the endorsement. “Consumers realize this is how the world works now. Influencer content has become the modern version of word of mouth, and disclosure is just the stamp of authenticity,” Uhlir observes.

REMAIN INVOLVED IN CONTENT CREATION.

Once you have provided the background, your job is not done. Ideally, you can build in review time, even if brief, to avoid missteps before posting content. Uhlir shares that Red Bull often opted to use a channel like FaceTime that allowed the team to observe content creation from afar, but in real-time, to conduct immediate edits if necessary.

Another helpful tactic to streamline content review relies on making sure you are using the personality’s preferred method of communication. Often an influencer may opt for a less traditional medium, such as texting, direct message, or even a Finstagram, a “fake” or secondary Instagram account that allows you to conduct the review process on the platform before releasing it more broadly.

This preview or preliminary approval can help alleviate the problem of an influencer posting something the brand ultimately decides would be prudent to take down. “You do not want to rely on the fact that a post can eventually be deleted if it is not factual or is deceptive,” Thompson notes.

A Finished Product to Be Proud Of

Brands have more tools at their disposal than ever to reach different audiences in modern, fresh ways – including influencers. But your brand’s credibility should always remain at the core of any marketing move you make.

“With any marketing initiative – and that includes working with an influencer – you want to strike a balance between the reputational risks and the reward,” Thompson says. “Initiating the social media ad program with the right claims at hand will allow you to enjoy the benefits while keeping your brand integrity intact.”