2022 Marcom Trends - Magazine - Page 21
INFLUENCER MARKETING/NATIVE ADVERTISING
From TikTok to Clubhouse: Expect the FTC To Stay
One Step Ahead
How “Sustainable” Are Your
Sustainable Cosmetics Marketing Claims?
Allison Fitzpatrick, Partner, firstname.lastname@example.org
Joseph Lewczak, Partner, email@example.com
Paavana L. Kumar, Associate, firstname.lastname@example.org
Stuart Lee Friedel, Partner, email@example.com
Darren Fried, Counsel, firstname.lastname@example.org
Alexa Meera Singh, Associate, email@example.com
Consumers have been deprived of consistent in-person connections
for almost two years now. In the wake of this, brands have redoubled
their efforts to resonate with their audiences. Now more than ever,
consumers reeling from political instability, acts of racial injustice
and ongoing uncertainty about the future are revisiting their core
values and priorities — resulting in consumer perception shifts that
may long outlast the immediate crisis of the pandemic.
When it comes to advertising or marketing cosmetic products as being “sustainable,”
brands should take into account several key considerations:
Can our brand make a broad environmental claim
if it is qualified with a specific benefit?
In response, brands have accelerated their efforts to partner with
influencers who are deeply connected to their audiences and who
genuinely care about diversity, inclusion and giving back. These
influencers have, in turn, become more specialized in their fields
and their ability to create interactive, successful content, and are
increasingly becoming known as “content creators.”
In a world where influencer and “content creator” brand partnerships
show no signs of slowing down, the Federal Trade Commission
(FTC) is poised to issue updates to its Endorsement Guides in 2022
(following a public comment period that closed on June 22, 2020).
These updates may well provide substantial new guidance with
respect to recent developments in technology and how consumers
perceive new media. In particular, platforms such as TikTok enjoyed
an incredibly high profile year, and have been quickly followed by
social networking platforms such as Clubhouse.
As of now, marketers should remember that even “viral” and
“organic” content on platforms such as TikTok is still subject
to the FTC’s core requirement — that influencers must clearly
and conspicuously disclose their material connections with the
marketer. Videos on TikTok include a standard text field in the
bottom left corner of the video, where many influencers will add a
disclosure. However, users on TikTok can easily export TikTok videos
to platforms such as Facebook, Twitter and Instagram, and the
standard text in the bottom left corner is often cut off when shared,
and certain regulatory and self-regulatory bodies are starting to take
action against such situations.
Last year, the National Advertising Division (NAD) of the Better
Business Bureau opened an inquiry into a consumer goods brand
with respect to this issue. The brand had contracted influencers
to post videos featuring a “dance challenge” in which influencers
break out into a dance while the voiceover sings about how it’s
20 DAVIS+GILBERT LLP
Yes, but the specific benefit should not be small or unimportant, as
consumers are likely to consider the benefit to be significant.
Can our brand make any
environmental benefit claim?
As with any advertising claim, an express or
implied claim touting the environmental
benefit of a product must be substantiated
with sufficient evidence.
time to “clean up your life.” The brand’s products appeared in the
background and all of the TikTok videos clearly and conspicuously
included the appropriate hashtag disclosing the material connection
between the influencer and the brand in accordance with the
Endorsement Guides. However, when those videos were shared to
Instagram, they did not include the applicable hashtag. The NAD
did not pursue the inquiry further after the consumer goods brand
demonstrated that it had taken action to ensure that disclosures
would be made properly in the future.
What We Can Expect In the Future
• As norms around sponsorship disclosures continue to shift,
expect the FTC to stay one step ahead.
• In particular, until further guidance is issued by the FTC,
marketers running influencer campaigns on TikTok and
similar platforms should consider requiring the influencer
to include additional disclosures, such as “ad” or “paid,”
superimposed over the video or image content in a
centralized location, to ensure that the disclosures will
follow if shared to another platform.
Can our brand make a broad
claim, such as our cosmetics are
‘sustainable’ or ‘renewable’?
The Federal Trade Commission (FTC) has
issued guidance that any broad, unqualified
environmental claim should not be made. These
types of claims are difficult, if not impossible, to
substantiate because a reasonable consumer
would likely understand the claim to convey a
“general environmental benefit” with myriad
benefits — all of which must be true and
Further, to minimize risk, the brand should identify the specific components
of the product that are sustainable or renewable, and explain why.
Does the brand
have to take the
and supply chain
when making a
Yes, the brand should do so.
‘Sustainable’ claims may
imply that the product has
no negative impact on the
For example: Even if the
‘sustainable’ claim is
qualified to clearly convey
that it applies only to a
certain significant ingredient
(and that claim is supported
by adequate substantiation),
the claim may be misleading
if the product is not made
using sustainable labor
should we be
Because these types of
claims have increased
popularity, there is
also the potential for
before making any
sustainable claims —
or other environmental
TRENDS IN MARKETING COMMUNICATIONS LAW 21