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Avoiding the Fashion Police in the #Ad(vertising) Age

Avoiding the Fashion Police in the #Ad(vertising) Age

By now, most people are familiar with the lucrative careers of fashion bloggers and digital influencers.  Countless articles have been published on how fashion bloggers make money, which ones demand the largest paydays, and how hopefuls can break into the field.  Leandra Medine of Man Repeller, Chiara Ferragni of The Blonde Salad, and Aimee Song of Song of Style have been rumored to now be millionaires, a status they have attained through brand sponsorships, affiliate links, and fashion  marketing campaigns.  One other avenue through which such personalities make money is through sponsored content, or “native advertising.”

 

The Federal Trade Commission (FTC), the government agency that focuses on consumer protection, defines native advertising as “content that bears a similarity to the news, feature articles, product reviews, entertainment, and other material that surrounds it online.”  Native advertising takes place when a company provides compensation for an online advertisement of their product or service, but the content is presented in a way in which it may not be immediately apparent that it is an advertisement.   In fashion, this is often seen through a blogger or online influencer being paid to feature a product on an Instagram page, Twitter account, or blog post.  This type of promotion is beneficial for brands because it allows them to use new media platforms to reach larger audiences in an engaging, innovative, and non-invasive way.

 

Due to the manner in which these ads are done, however, it can be difficult for visitors to an influencer’s online platform to know if a post is a paid advertisement or simply an unsolicited testimony.  In response to this problem, the FTC, in its role as a consumer protector, has laid down rules dictating how native advertising should be done to minimize consumer confusion.  Most recently, Lord & Taylor found itself in legal hot water for violating these standards.  In 2015, it launched a campaign where it created content to advertise a Design Lab dress and paid Nylon magazine (an internet publication) and 50 Instagram fashion personalities to promote it.  The FTC later claimed that the advertisements created under this campaign were deceptive because they neither disclosed that they were advertisements nor that the magazine and bloggers had been paid to endorse the dress.  The retailer settled with the government agency and avoided fines, but is now subject to injunctions on future advertising methods.

 

The FTC regulations that Lord & Taylor were accused of violating are contained in the “Enforcement Policy Statement on Deceptively Formatted Advertisements” (“Policy Statement”), which were released in December 2015.  These legally binding provisions, focusing on placement, prominence, and clarity of meaning in native advertising, serve as the agency’s most updated rules on the matter.  The following list consists of highlights from the Policy Statement, as well as key information from two other helpful FTC publications—“Native Advertising—A Guide for Businesses” and “.com Disclosures:  How to Make Effective Disclosures in Digital Advertising”:

 

Placement

  • Disclosures should be located near the appropriate ad. On click- or tap-into pages with native ads, disclosure should be near where customer is likely to look first
  • For video ads, disclosures should be on the screen long enough to be noticed, read, and understood
  • Disclosures should be located near the appropriate ad. On click- or tap-into pages with native ads, disclosure should be near where customer is likely to look first
  • For video ads, disclosures should be on the screen long enough to be noticed, read, and understood
  • Disclosures should be in front of or above headline of native ad
  • Disclosures should be located near the appropriate ad. On click- or tap-into pages with native ads, disclosure should be near where customer is likely to look first
  • For video ads, disclosures should be on the screen long enough to be noticed, read, and understood
  • Disclosures should be in front of or above headline of native ad

 

Prominence

  • The effectiveness of a disclosure should be viewed in the eyes of a “reasonable consumer.”Ads and promotions should be clearly identified as such, and disclosures must be “clear and prominent”
  • The actual appearance of the disclosure should be taken into account, including font color and lettering and graphic layout. Shaded disclosures should stand out against the background and should be “sufficiently saturated”
  • The disclosure itself should be noticeable—font should be easily noticeable and text color should “contrast strongly” with the background

 

Clarity of Meaning

  • Disclosure must be understandable. Use of tech or industry jargon is prohibited, as well as uncommon icons or abbreviations.  Advertisers may also not use different words to mean the same thing or use the same words to mean different things
  • The terms “Ad,” “Advertisement,” “Paid Advertisement” or “Sponsored Advertising Content” are acceptable, but “Promoted” or “Promoted Stores” are not. “Presented by,” “Brought to You By,” “Promoted By,” or “Sponsored By” might be appropriate depending on the circumstances

Businesses should keep the FTC’s guidelines in mind when working with influencers, and ensure that their sponsored content does not violate the Policy Statement.   Contracts with online influencers should clearly state the requirements for promoting a brand’s product, and companies would do well to regularly monitor the posts of their advertising partners.  In order to maintain relationships with sponsors, influencers should familiarize themselves with advertising rules and make sure that posts satisfy the provisions.

 

Refer to the links below for further information:

  1. Enforcement Policy Statement on Deceptively Formatted Advertisements
  2. Native Advertising—A Guide for Businesses
  3. .com Disclosures: How to Make Effective Disclosures in Digital Advertising

 

Disclaimer:  This article is for educational purposes only.  It is not legal advice, nor are there any attorney-client relationships formed by this article or any comments to this article. 

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