Hunton Retail Law Resource

In a recent decision, the National Advertising Division (NAD) of BBB National Programs recommended that Revolve Group, Inc., a clothing company with an extensive influencer network, modify influencer posts to more clearly disclose the material connections between Revolve and influencers in its product gifting program.

Make It Crystal: Revolve’s Brand Ambassador Posts Not Clear Enough

Revolve had engaged the two influencers through a product-gifting relationship in which the company offered a clothing credit towards their merchandise in exchange for a certain number of social media posts about the Revolve brand. The posts in question, flagged by NAD’s routine monitoring program, directed viewers to Revolve’s social media account and featured a hashtag used typically by Revolve customers to identify Revolve clothing featured in social media posts. Despite the mention of Revolve in the posts, the NAD found that the tags -- @Revolve and #revolveme -- failed to disclose the nature of the connection between Revolve and the influencers.

Revolve’s Influencer Guidelines Missed the Mark on Ensuring Disclosure

During its inquiry, the NAD found that the guidelines Revolve provided to brand ambassadors were insufficient in instructing how to properly make material connections known to consumers or comply with the FTC’s Endorsement Guides. Although Revolve did inform its partners how to conspicuously disclose the gifted-clothing relationship with the company, the NAD found the instructions could be easily missed because they were listed at the bottom of a bulleted list.

In response, Revolve updated it guidelines to provide its influencers with examples of hashtags and language to make their material connections with Revolve explicit in the first line of any sponsored post. Moreover, Revolve revised its Checkout Terms for influencers to clarify disclosure requirements for any posts made under the agreement and provided visual examples of conforming material connection disclosures. Finally, Revolve pledged to more closely monitor advertising posts to ensure compliance.

Still Not Clear Enough: NAD Deems Ambiguities in Revised Posts Do Not Conform to the FTC Endorsement Guide

Even after certain posts were updated to include the more robust disclosures (e.g., #Sponsored and #giftedbyresolve), the NAD found aspects of those posts to continue to fall flat. First, hashtags used by influencers that run words together, such as #giftedbyrevolve, make it difficult for customers to understand that a brand is sponsoring the post. The FTC’s “What People Are Asking” makes clear that hashtags made of several words can be confusing to consumers, and assert that disclosures about a sponsorship relationship must be easily noticed and understood. Second, including the hashtag “#sponsored” may be inadequate when multiple brands are tagged in the post. In one instance, a post with the caption “Wearing @revolve @loversfriendsla #sponsored” did not make it clear to the consumer which entity was sponsoring the post.

The Bottom Line: Social Media Posts Must Make Material Connections Unambiguous and Obvious

It bears repeating (see here and here) that brands should carefully craft their influencer guidelines, making clear and prominent the full requirements NAD and the FTC would expect. Brands should also monitor influencer posts, even those that are part of gifting and ambassador programs.