Advertising Law Blog

As part of its routine monitoring program, the National Advertising Division of the Better Business Bureau (“NAD”) initiated an inquiry into the relationship between popular online clothing store Revolve Group, Inc. (“Revolve”), and certain influencers that tagged Revolve in their posts on social media, namely Georgia Hassarati and Alyssa Nicole Nelson. Specifically, NAD inquired regarding the influencers’ relationship to Revolve, and what measures were being undertaken by Revolve to ensure that the influencers it engages with comply with the Federal Trade Commission’s (“FTC”) Endorsement and Testimonial Guides (“Endorsement Guides”).

In relevant part, the Endorsement Guides provide that if there is a material connection between the endorser and the marketer that a consumer would not necessarily expect, then that connection must be clearly and conspicuously disclosed. In order to be clear and conspicuous, the disclosure must be difficult to miss. Brands who work with influencers to promote their products must ensure that the material connection is clearly and conspicuously disclosed.

Revolve works with influencers in a variety of ways, and according to Revolve, it always requires influencers to clearly and conspicuously disclose the material connection in accordance with the instructions provided by the brand in its Brand Ambassador Guidelines. Often, influencers are gifted clothing credits whereby influencers can use such credits to obtain certain items from the Revolve website in exchange for social media posts. Although Revolve did require such disclosures from its influencers, NAD took issue with the form of such disclosures and Revolve’s practices regarding same.

NAD highlighted the FTC’s comments that disclosures on Instagram must be presented prior to the user having to click “more” in order to see the complete caption. Further, for endorsements in videos, the disclosures should be made in the videos, preferably both visually and audibly.

In response to NAD’s inquiry, Revolve took the following steps to more clearly make known to its influencers what is required with respect to material connection disclosures:

• Revised its initial outreach emails to potential influencers to more clearly require that such influencers comply with all applicable laws, rules, and regulations when working with Revolve.
• Revised its Brand Ambassador Guidelines to provide examples of acceptable disclosures that should be displayed “above the fold,” including #Ad, #Advertisement, #RevolveAmbassador or #RevolvePartner.
• Revised its checkout terms that are displayed to the influencers before using its gifted clothing credits to more clearly state the material connection disclosure requirements and provide examples of acceptable material connection disclosures.
• Committed to increasing its monitoring process.

In response to these changes, NAD noted that Revolve’s checkout terms are 12 lines long and do not explain how influencers must comply with the relevant guidelines. Further, NAD took issue with Revolve’s email to influencers where the material connection disclosure requirement is included in the fifth of seven bullet points, which in NAD’s opinion “can easily be missed.”

Regarding the disclosures themselves, NAD opined that the disclosure #giftedbyrevolve would likely not be sufficient as the words run together and it would therefore be difficult for consumers to understand the disclosure. Alternatively, NAD pointed to the FTC guidance where it stated that “Sponsored by XYZ” or “Promotion by XYZ” would be clearer and recommended that Revolve consult the Endorsement Guides and related guidance to provide further examples of clear and conspicuous disclosures.

Takeaway: This decision serves as a reminder to those involved in influencer marketing that material connection disclosures continue to be required, and they are the responsibility of both the influencers and the brands. It is important for those parties involved in such marketing to keep abreast of current FTC guidance and ensure compliance with same. Further, it is particularly important for any brands engaging in influencer marketing to monitor such influencer posts to ensure compliance with applicable laws, rules, and regulations, as well as compliance with any brand-specific endorsement guidelines.