In an age where we are increasingly buying online, influencers have taken to the podium as the most used and often most powerful way for brands in the beauty industry to connect and engage with their customers. This trend has been accelerated by the COVID-19 pandemic, with stores closed and consumers unable to "try before they buy", which has traditionally been an essential – and fun – part of shopping for cosmetics.
Nowadays, consumers still do the "buying" but influencers are doing the "trying". In fact, influencers have dramatically changed the way beauty brands advertise as a collective; whilst celebrity endorsements still have their place, particularly in print, influencers can offer a more personalised – and immediate – route to the customer. With their expansive social media presence and close consumer relationships, collaborating with the right influencer, and in the right way, can translate a loyal following directly into brand loyalty. But with opportunity comes responsibility, and potential pitfalls; this article discusses some of the key legal considerations that a beauty brand should bear in mind when partnering with influencers, with a particular focus on contractual safeguards and ensuring compliance with #ad rules.
First, whatever the nature of the partnership, in order to protect brand reputation the key terms of any relationship should be documented clearly from the get-go in an influencer or ambassador agreement:
- Agree on the use of filters and editing of posts: a post will be misleading where it may lead a consumer to purchase a product they may not have chosen to do, for example by applying a filter to social media in such a way that it exaggerates the effect of the product being advertised (as Skinny Tan recently discovered – see below). This is easily done in the case of cosmetics; due to sophisticated face recognition technology, social media filters can now convincingly change the appearance of the face without consumers always being aware.
- Exclusivity: consider whether the influencer's other commitments conflict or compete with your brand and whether engagements with competitive beauty brands should be restricted during a particular period, within certain product categories, or on particular social media channels. It is helpful if the influencer is obligated to update the brand with any such commitments.
- Commitments: specify what the influencer is required to commit to as a minimum. This may be in terms of time commitments, appearances at events or product launches or, most commonly, social media posts. For the latter, it is important to specify the number and nature of the posts, including the platform, when and at what time of the day to post, and whether the post will include, for example, an Instagram story, a reel, or a shoppable post. In some cases it may be appropriate to specify the text to be included.
- Usage and licences: If the brand wishes to re-post or reuse the material posted by the influencer it is important to include this in the agreement by way of a licence covering, for example, the image, text or caption and influencer's name or nickname. Consideration should be given to how long this licence or right to use will last, whether the post is useable in other contexts or on other platforms, and whether and to what extent the brand is permitted to modify or alter the image later on. Consent to use must also be obtained from third party photographers or videographers if involved in the making of the post.
- Morality clauses: morality clauses – or clauses allowing the brand to exercise certain rights in the event that the influencer does or says something that does not align with the brand's morals and company ethos – are essential for minimising the risk of negative press attention. This can be achieved by annexing appropriate brand guidelines to the agreement but is also an important consideration when deciding at the outset who might be the most appropriate influencer with whom to partner; a "meeting of the minds" on considerations such as environmental, animal rights, and Diversity and Inclusion are particularly important in the beauty industry.
- In the event the morality clause is engaged, an option to terminate can be a useful tool for brands but, depending on the nature of the partnership, can also be a blunt instrument. Instead, brands may wish to consider drafting in a suspension of the influencer's obligation to post/the brand's obligation to pay, a breather period to allow an assessment of reputational damage, and/or an obligation for the influencer to issue a public apology or take other specific remedial action.
- Flexibility: It is also important to draft in clauses that allow for flexibility in the event of unforeseen delays, for example if product launches or events around which a campaign is centred are postponed. This is especially important in light of the COVID-19 pandemic. More generally, whilst one influencer might appropriately represent a brand image at an early stage in its lifecycle, brands – and people – change, and it is important to be able to adapt and change partnerships with influencers to reflect this.
Compliance with #ad rules
Another important consideration is ensuring through contractual provisions and also ongoing discussions with influencers that any influencer marketing complies with the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code) as well as relevant legislation, including the Consumer Protection from Unfair Trading Regulations 2008. As discussed in our recent article, the Competition and Markets Authority (CMA) is consistently reviewing whether influencers are disclosing paid-for endorsements, in order to ensure that both understand they must be "upfront and honest with their followers".
The key provisions for beauty influencers and partnered brands to be aware of have been summarised in a useful Influencer's guide, by the Advertising Standards Authority (ASA) and the CMA. This guide was published in light of the increasing need for clarity – both for influencers and consumers – on when an "advert is an advert".
Key points for beauty brands to consider are:
- Be authentic but be honest: Ads must be "obviously identifiable as such" without consumers needing to interact, click or tap on the ad or post. This may be particularly difficult for beauty influencers who rely on creating an authentic relationship with their followers, by creating stream of consciousness-type editorial content – often in the form of vlogs -- showing a beauty regime where that influencer has a 'paid relationship' with some, but not all, of the products featured.
- What counts as 'payment'? The CAP Code will govern an ad beyond where financial payment has been made, and includes where products have been gifted. If the brand has any form of 'editorial' control over the content of the post (including, for example, posting at specific times), then the ad must comply with the code.
- Which hashtag? The ASA and CMA encourage the use of hashtags such as "Ad", or "Advertisement", discourage influencers from using the commonly used "gifted" or "sponsored" and advises against the use of the term "affiliate" as well as any unfamiliar abbreviations such as "Spon". The hashtag needs to be at the top of any caption or hashtag list, or at the beginning of a video. Simply tagging a brand or using a promotional code is not enough, as GHD recently discovered when the ASA upheld a complaint in respect of a video posted by TikTok influencer Emily Canham advertising a GHD-branded hairdryer and straightener, which appeared without the "Ad" tags but with an accompanying promotional discount code. This was the first complaint upheld by the ASA in respect of a TikTok influencer and is likely to be the first of many.
- Ads must not be misleading: A post will mislead if it fails to disclose the influencer's relationship with the brand but also if the post omits material information about the product.
Stories of influencers falling foul of the CAP Code and relevant legislation have pervaded the press in recent years. Beauty influencers are not immune, as shown by the recent complaint upheld by the ASA against Skinny Tan. Skinny Tan, who had partnered with influencer Elly Norris to advertise their fake tan products, was accused of misleading advertising on the basis that the Instagram filter "Perfect Tan", which had been applied by Ms Norris to her posts, "exaggerated the efficacy" of the advertised product. In its decision the ASA warns cosmetic brands to take particular care not to exaggerate the effect of the product advertised, for example through the use of Instagram filters. In this case the filter was objectionable because it resulted in a darker skin tone, which was therefore directly relevant to the claimed effect of the product. Applying this reasoning it is likely the ASA would object to the use of an airbrushing filter to promote a pore minimiser, or to a filter that brightens skin tone applied to ads for products which claim to achieve this type of result.
Influencers: a changing landscape
It is worth noting that, even where influencer marketing is not paid for (in the above sense) and even without any affiliation with the brand in question, such marketing can have a powerful and lasting effect on a brand's image. Independent influencer profiles and blogs such as Diet Prada, which has 2.5 million followers on Instagram, or beauty blogger Caroline Hirons, with nearly 600,000 followers on the platform, have amassed such a cult-like following that the success or failure of a particular product or even brand can be secured in a single post.
In a digital world where the beauty zeitgeist is one of authenticity and in which influencers are the marketing method of choice, it has never been more important to ensure appropriate legal protection whether through contract, compliance with industry regulators, or having a robust reputation management plan in place for when matters do not go accordingly to plan.