By Janelle L. Davis
The past several decades have brought tremendous change to the world of advertising. The Internet — and particularly, Facebook, Twitter, Instagram, and Snapchat — have increased both the potential audience that a retailer can reach, but also its potential liability for advertising missteps. Before jumping into the world of social media, retailers should be sure they are familiar with the various guidelines that govern their conduct and the potential land mines that await. Below are some important Do’s and Don’ts to consider before posting on social media.
Do:
- Do familiarize yourself with the Federal Trade Commission’s guidelines, Dot-Com Disclosures, and FAQs Brochure to the Guide Concerning Endorsements and Testimonials. These resources have information that the FTC, courts, and other industry organizations use to govern their actions and to evaluate the statements made by retailers online.
- Do take reasonable steps to monitor the posts of your known celebrity and consumer endorsers. Make sure that those individuals are not making false or misleading statements about your products and make sure that all necessary disclosures are made regarding the product claims as well as the relationship with and benefits to the endorser.
- Do correct any misstatements made by celebrity and consumer endorsers or any failures to disclose material information.
- Do be careful before using hashtags. The use of a hashtag can be considered an endorsement and therefore, can have related disclosure concerns. Specifically, consumer endorsements on Twitter using hashtags to enter a contest are generally considered a material fact that should be disclosed. If you intend to use a hashtag for a promotional contest, making “contest” or “sweepstakes” part of the hashtag may be sufficient to meet your disclosure requirement.
Don’t:
- Don’t forget to comply with disclosure requirements when using endorsements. These disclosure requirements include the disclosure of material connections and remuneration to endorsers and product or study disclaimers. Content limitations on social media, such as the fact that tweets are limited to 140 characters, are no excuse for the retailer to avoid these disclosure requirements. In fact, in response to specific questions about the 140 character limitation on Twitter, the FTC has suggested the use of terms like “sponsored,” “promotion,” “paid ad,” “ad,” and “#ad” to meet at least some required disclosures.
- Don’t require consumers to scroll significantly to view a disclosure on their mobile device. Even when a disclosure is viewable on a desktop computer, or if there is a general disclosure on the banner of a Twitter page, that may not be sufficient. Consumers can read individual tweets or re-tweets without ever seeing that banner. This same consideration applies to consecutive tweets that users can view separately. Each must contain the appropriate disclosure.
- Don’t be afraid to jump in! While the world of social media does present unique challenges for retailers, it also provides a number of opportunities to reach consumers and grow your business.
- Don’t forget to consult your in-house or outside counsel with areas of concern. A little bit of time taken before advertising on social media can prevent possible issues in the future.
Janelle L. Davis is a partner in the Dallas, Texas office of Thompson & Knight LLP where her practice includes litigation and counseling on matters involving advertising, antitrust, aviation, products liability, and other complex business litigation and commercial disputes. She has defended manufacturers against false advertising class action claims and has extensive experience managing litigation, including coordination with national and discovery counsel, expert witnesses, and trial counsel; making and implementing strategic decisions throughout a case; and drafting dispositive and Daubert motions. www.tklaw.com/janelle-davis/