Engaging Social Media Influencers - what do you need to know?

As food and drink businesses seek to grow their brand, many will look to engage social media influencers to promote their brands. Influencers may take the form of everyone from chefs or food bloggers to celebrities or other individuals with sizeable social media followings. In this blog, we look at the key things to think about when engaging an influencer.

Managing risk

During lockdown, many  food and drink businesses sought to grow their brand via direct to consumer marketing on social media. Social media influencers and brand ambassadors frequently play a role in this, enabling a brand to piggy-back on their followers and reach new audiences through collaborations  and brand association.

However, engaging an influencer can create risks for the business. What happens if the influencer does something that may damage your brand? What about historic posts that might express views or opinions that do not align with your brand values? The influencer will be an extension of your brand, so it is essential that you check that they are the right fit. 

An edgy influencer might be appropriate for an edgy brand, but may fit less well for others. You don't want to end up getting higher profile for the wrong reasons.

A contract, together with appropriate pre-contract diligence, can help to manage these risks. You can use the contract to make sure that both you and your influencer are clear on how long the arrangement lasts, what the influencer has to do for the fee how much the fee will be (for example, the number or frequency of posts), and the circumstances in which you can bring the arrangement to an end. You can also use the contract to make sure that the influencer adheres to your brand guidelines and policies. While some influencers may try to limit your control over their posts, think first whether you are comfortable with that.

Finally, you'll also want to make sure that you deal with intellectual property issues. If the influencer is creating the content then they or their team will own the IP in the content created, and may have other rights such as performer's rights. If music or other third party content is being used, then it's important that this is properly licenced. You'll also want to make sure that you have a clear licence to reuse the content that is created.

CMA, ASA and social media platform rules

The Advertising Standards Authority and the Competition and Markets Authority have detailed rules in relation to endorsements and sponsored content on social media. Under Consumer Protection laws and the ASA's CAP Code, marketing must be obviously identifiable. Whether marketing is regulated by both the CMA and the ASA will depend on the nature of the arrangement and the content being created.

Key to ensuring that an advert is obviously identifiable is using a hashtag such as "#ad" or "#advert", however that needs to be done prominently and not using ambiguous language.  Using "#spon" or "#sp" or simply tagging or thanking the brand isn't sufficient.

The rules apply not just to paid for advertising, but also where products have been gifted or loaned, or there has been some other benefit to the influencer. For example, the ASA has taken action against a TV personality who have tweeted about hair salon and shared a discount code, without making clear that the salon waived the cost of the services she had received. 

The ASA also maintains a webpage of influencers who repeatedly fail to disclose Instagram posts that are adverts. A particular area of concern for regulators is the use of Stories, IGTV and Reels, where influencers are not making consistent disclosures across the Stories or post contains a disclosure but the Story or Reel does not.

The CMA has published guidance on social media endorsements. The ASA has also published detailed guidance for influencers.

Finally, you'll also want to ensure that your influencer complies with the social media platform's rules. Again, you can use your contract to do this and ensure you have rights to terminate if these rules aren't followed.

Recommendations

Here are our top five recommendations for engaging a social media influencer:

• Diligence - carry out diligence. Check their previous posts. Is there a risk of brand damage? How will you manage that if it does happen?
• Contract - put in place a contract with your influencer setting out the relationship, its duration, rights to bring it to an end, what they will be paid and what happens to the content at the end of the contract
• Brand/social media guidelines - think about putting in place guidelines about how your product or brand is presented and do's and dont's for posts
• CMA/ASA Compliance - ensure that your influencer is aware of consumer protection laws and CMA/ASA guidance and includes appropriate tags in their content. Remember that an adverse ASA ruling against the influencer could have a negative impact on your brand
• IP - make sure that you have the right to use/reuse any content created by the influencer in your marketing campaigns
  

If your business is thinking of using influencers to help grow their online presence and would like to discuss how you manage these risks and engage an influencer, please get in touch.