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Who is responsible when an influencer campaign breaks the advertising rules?

AgenciesMarketingCompliance

Everyone in the chain can be. The FTC's Endorsement Guides hold the brand responsible for the claims its influencers make and for making sure they disclose that they were paid. They also say that intermediaries, including advertising and marketing agencies, can be liable for their role. If your agency hires the creators, writes the brief or approves the posts, you are part of that chain.

What usually goes wrong

• The influencer leaves out the disclosure, or hides it.
• The post makes a claim the brand cannot back up, such as health results or "best in the market".
• The influencer uses music, footage or another person's image without permission.
• The post stays up after the campaign, or after the brand asked for changes.

How agencies protect themselves

Through two contracts. The influencer agreement should require clear disclosure in every post, prohibit claims the brand has not approved, give you the right to review content before it goes live, and let you require edits or removal. The client agreement should say the brand is responsible for its product claims and supplies the substantiation for them, and should set out who covers what if a regulator or a competitor complains.

Monitoring matters

The FTC has said that a brand should have a reasonable program to train and monitor the people who promote it. In practice that means a short disclosure guide sent with every brief, a check of each post when it goes live, and a record that you asked for fixes when something was wrong.

What to do

• Put disclosure, approval and takedown rights in every influencer contract.
• Get the client's approved claims, and their support for them, in writing before the brief goes out.
• Check each post on the day it goes live, and keep a record.
• Agree with the client, in the services agreement, who handles a complaint.

Written by the lawyers who built Arabella. This is legal information, not legal advice for your situation, and reading it does not make us your lawyers. For a real dispute or a high-stakes decision, talk to a licensed attorney. More questions.