Page 8 - Fashion Law

S8 | MONDAY, SEPTEMBER 12, 2016 | Fashion Law
| NYLJ.COM
Legal Pitfalls for Fashion Brands In Social Media
BY ANDREW B. LUSTIGMAN AND SAFIA A. ANAND
Brands continue to rely heavily on social media in uencers as an important way to reach and interact with consumers, particularly millennials. Brands crave social media’s interactive nature with consumers, the ability to have an informal dialog, and the ability to deliver a message virtually instan- taneously. In their desire to seize on social media’s impact, brands sometimes forget that
ANDREW B. LUSTIGMAN is a partner at Olshan Frome Wolosky and head of its advertising, marketing and promotions practice. SAFIA A. ANAND is counsel at the rm.
the same laws and restrictions that apply to traditional advertising and promotion also apply to these new forms of promotion.
Traditional Advertising Rules Apply Even in Social Media
The Federal Trade Commission (FTC) has increasingly focused its attention on the use of social media in uencers. As is the case with traditional advertising, a speaker’s statements must be their own good faith opinion, and any product claims must be consistent with what the brand could support and state in its own advertising.
The FTC requires that in posts where the in uencer is wearing or discussing the brand’s products, the in uencer must clearly
and conspicuously disclose that there is a material connection with the brand, which can include receiving direct compensation, as well as complimentary clothing for approval. Assuming such a relationship, the in uencer must disclose that the post is an advertise- ment or is sponsored. The disclosure must be made prominently—typically at the outset of the post—and in a manner that can be readily understood. The disclosure obliga- tion applies whether or not the brand has dictated the in uencer’s posting. While the FTC does not dictate the speci c language or that it include a hashtag, it has recom- mended “ad” or “sponsored” be used at the beginning of the post and has frowned on using abbreviations such as “spon” or “sp.”
These are not hypothetical obligations. Recently, the FTC brought charges against
Lord & Taylor claiming that it deceived con- sumers by paying for native advertisements, including a seemingly objective article in an online publication, Nylon, and an Instagram post, without disclosing that they were actu- ally paid promotions for Lord & Taylor’s 2015 Design Lab clothing collection. The FTC also alleged that, as part of the Design Lab rollout, Lord & Taylor paid online fashion in uenc- ers to post Instagram photos of themselves wearing a particular dress from the collection, but failed to disclose that each “In uencer” was given the dress and received payment for their posts. While the in uencers could style the dress as they wished, Lord & Tay- lor contractually obligated them to use the @lordandtaylor Instagram user designation and the hashtag #DesignLab in the photo caption. In addition to the negative publicity
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