USA Law and Practice Contributed by: Katelyn Patton, Frankfurt Kurnit Klein & Selz
5.5.2 Advertiser Liability for Influencer Content In appropriate circumstances, advertisers can be held liable for content posted by their influencers, and advertisers are expected to have reasonable training, monitoring and compliance programmes in place. Therefore, it is prudent for advertisers to have proper procedures in place to help ensure that influencer posts are legally compliant. In the FTC’s Endorsement Guides, the FTC states that advertisers may be liable for deceptive endorsements by influencers. The FTC also advises advertisers to provide guidance for their endorsers on the need to ensure that their statements are not misleading and to take action sufficient to remedy non-compliance and prevent future non-compliance. As the FTC has explained: “While not a safe harbo[u]r, good faith and effective guidance, monitoring and remedial action should reduce the incidence of deceptive claims and reduce an advertiser’s odds of facing a Commission enforcement action.” 5.5.3 Consumer Reviews The FTC’s Endorsement Guides provide guidance on the solicitation, hosting and use of consumer reviews. In general, advertisers should solicit reviews in a man - ner that is intended to obtain consumers’ unbiased opinions. When hosting reviews that have been incen - tivised, advertisers should ensure that such incentives are properly disclosed. When hosting reviews, adver - tisers should not organise (or curate) the reviews in a manner that misrepresents consumers’ views. One particular area of focus by the FTC has been on the proper hosting of consumer reviews on an advertiser’s website. The Endorsement Guides pro - vide: “In procuring, suppressing, boosting, organi[s] ing, publishing, upvoting, downvoting, reporting or editing consumer reviews of their products, advertis - ers should not take actions that have the effect of distorting or otherwise misrepresenting what con - sumers think of their products, regardless of whether the reviews are considered endorsements under the Guide.” When advertisers select individual reviews for use in advertising materials (as opposed to providing a sec - tion of a website for the hosting of reviews gener -
ally), advertisers should generally treat the review as they would treat any other endorsement being used in advertising. As mentioned in 2.5 Endorsements and Testimonials , in August 2024, the FTC announced the issuance of the FTC Consumer Review Rule, which formally pro - hibits certain practices identified as unfair or decep - tive in the Endorsement Guides. Key provisions of the rule include prohibitions against: • reviews and testimonials that falsely claim to be from a real person (including those generated by AI) or those from individuals who do not have actual experience with the business or its prod - ucts/services; • businesses creating, selling or distributing decep - tive reviews or testimonials, as well as against the purchase of such reviews, obtaining them from company insiders, or publishing these testimonials if the business knew or should have known they were fake or false; and • businesses giving compensation or incentives in exchange (explicitly or implicitly) for reviews that express a specific sentiment, whether positive or negative. The Controlling the Assault of Non-Solicited Pornog - raphy And Marketing Act of 2003 (the “CAN-SPAM Act”), enforced by the FTC, establishes requirements for commercial email messages, provides email recipi - ents with opt-out rights and spells out penalties for violations. Under the CAN-SPAM Act, key email mar - keting requirements include the following. • The message may not include false or misleading header information. • The message may not include a deceptive subject line. • The message must be clearly identifiable as mar - keting, whether by labelling it as such or as made clear from the content itself. • The message must include the sender’s physical postal address. 6. Privacy and Advertising 6.1 Email Marketing
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