The Federal Trade Commission vs. Native Advertising: Score One for the FTC

ptpbIt’s pretty much a given these days that “native advertising” has it all over traditional advertising when it comes to prompting prospects to try a new product or service. Study after study shows that positive recommendations and ratings from family members, friends, key influencers and even simply fellow users are what prompt people to try it for themselves.

These dynamics mean that suppliers are looking for as many opportunities to publicize their offerings through these native channels as they can.

There’s a bit of a problem, however. Bloggers and other influencers have become wise to this reality — and many are taking it all the way to the bank.  The market is replete with conventions and other events such as the annual Haven Conference, at which these key influencers congregate and “hold court” with suppliers.

While there is no prescribed agenda regarding what’s discussed between suppliers and influencers, generally speaking there’s a whole lot of quid pro quo going on:  Things like receiving copious free samples in exchange for publishing product reviews, receiving monetary payments for mentioning products and brands in blog articles and on social media posts, and more.

One can’t really blame the influencers for peddling their influence to the highest bidder. After all, many successful bloggers and other influential people derive most or all of their livelihood from their online activities.  It’s only natural for someone whose influences ranges widely and deep to expect to be compensated for publicizing a product, a service or a brand — whether or not they themselves think it’s the best thing since sliced bread.

But there’s a growing problem regarding the “pay to play” aspects of native advertising. This past December, the Federal Trade Commission reiterated its opinion that such sweetheart deals are tantamount to advertising, and therefore must be prominently identified as such in online and other informational content.

Of course, including a prominent announcement that payment has been exchanged for an influencer’s commentary significantly lowers the positive impact of native advertising, in that the commentary being valued by consumers precisely because of its inherent objectivity and credibility is no longer much of a hook.

Until recently, it wasn’t clear how strict the FTC was going to be about enforcing its stated policy about disclosing financial remuneration for brand coverage by influencers.

L+TLWell, now we know.  It’s in the form of a settlement reach this month by the FTC with retailer Lord & Taylor over a particular online ad campaign that contained native advertising and social media components.  It’s the first time the FTC has brought an enforcement action since its native ad guidelines were published.

The settlement pertains to a promotional campaign for Lord & Taylor’s Design Lab private-label line of spring dresses. The initiative reached more than 11 million Instagram users, and the particular sundress at the center of the publicity campaign sold out quickly as a result.

The native advertising portion of the promo effort stemmed from an article about DesignLab that appeared in the online magazine Nylon.  That article was paid for by Lord & Taylor, which also reviewed and approved the article’s content prior to publication.

As could be expected, no notification that the piece was a paid ad placement was included when the article was published.

Skating close to the edge even more, the social portion of the promo campaign involved the retailer giving the sundress to approximately 50 top fashion bloggers, along with paying each blogger between $1,000 and $4,000 to model the dress in photos that were then posted to Instagram.

The bloggers were allowed to style the dress in their own way, but they were asked to reference the dress in their posts by using the campaign hashtag #DesignLab as well as @lordandtaylor.

Furthermore, the retailer reviewed and approved these social media posts before they went live, which enabled them to make stylistic edits before-the-fact as well.

Here’s an excerpt from the FTC’s statement about the Lord & Taylor action:

“None of the Instagram posts presented to respondents for pre-approval included a disclosure that the influencer had received the dress for free, that she had been compensated for the post, or that the post was a part of a Lord & Taylor advertising campaign.”

Clearly, the FTC is now putting muscle behind its 2009 opinion (and reiterated last year) that failing to disclose that an endorsement has been paid for is a deceptive practice.

In this particular “test case,” Lord & Taylor is getting off somewhat easy in that there have been no monetary penalties levied against the retailer. However, the company has signed a consent decree that is in place for the next two decades, which would mean “swift and stiff” penalties if the retailer were to transgress in the future.

Other terms of the settlement mandate that Lord & Taylor require its endorsers to sign and submit written statements outlining their obligation to “clearly and conspicuously” disclose any monetary or other material connections they have to the retailer.

Clearly, the Lord & Taylor settlement is a shot across the bow by the FTC, signifying that it means business when it comes to alerting consumers of the financial or other material connections that exist between influencers who are making value judgments on products and services.  In effect, the FTC is saying to the marketing world, “Be very careful …”

It’ll be interesting to see how marketers finesse the challenge of figuring out how to corral the obvious benefits of native advertising while mitigating the dampening effects of “full disclosure.”

Perhaps bloggers and other influencers will need to re-think their own business models as well, seeing as how the “golden goose” of supplier perks seems to have lost some of its luster now.

Stay tuned — this new “lay of the land” is still unfolding.

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