The nutrition industry is one in which the actions of a “rogue” influencer can detonate any number of legal landmines.
Among the occupations to emerge from the fertile soil of social media is that of the “influencer,” that unofficial expert or advocate whose opinions on any number of products, practices, or trends spur followers to action—and to stores to buy stuff.
That’s a heady power to wield. And, as dietary supplement brands increasingly recognize, it’s a handy way to generate sales. All of which is why those same brands are cozying up to influencers in a bid to yolk the latter’s voices to the promotion of the formers’ SKUs.
But when a brand’s reputation is on the line—to say nothing of its standing with the Food and Drug Administration—the question arises as to how best to influence the influencer.
That’s a question that John E. Villafranco, partner, Kelley Drye & Warren LLP (Washington, DC), has been contemplating of late. “Consumers generally rely on experts for health advice,” he says, “and when an influencer makes statements about health-related products, she is, to some extent, holding herself out as an expert. So from a legal standpoint, this is why having policies and procedures in place to govern influencer use is essential.”
Serious About Statements
It’s hard to underestimate just how much sway influencers hold with supplement users. In fact, Villafranco says, “Influencers’ voices are arguably more powerful in the dietary supplement space than in more traditional arenas where we see influencer advertising.”
Yet at the same time, the nutrition industry is one in which the actions of a “rogue” influencer can detonate any number of legal landmines.
“The dietary supplement space is especially risky,” Villafranco explains, “because advertisers need to ensure that influencer posts both are truthful and convey the necessary information when marketing supplement products subject to FDA regulation”—in other words, scrolling out those all-too-familiar litanies of risks, side effects, and “material facts about the product’s limitations of use, among other issues,” he says.
That puts the onus on brands to vet not only the accuracy of their influencers’ statements, but those statements’ permissibility within the bounds of the law. And if they don’t conduct such vetting, FDA will be more than happy to do the vetting for them.
“We’ve already seen at least one warning letter from the Food and Drug Administration concerning an influencer’s post as related to FDA-regulated products,” Villafranco says, “so this is an area regulators take seriously.”
Staking a Claim
And that’s just FDA. Influencer content also falls under the purview of the Federal Trade Commission (FTC), and according to that regulatory body’s endorsement guides, brands are responsible for any claims that influencers might deliver via their endorsements or testimonials, Villafranco says.
“Therefore, if a company’s influencer makes unsubstantiated claims, FTC could take enforcement action against the company directly for those unsubstantiated claims,” he points out.
And in today’s “heightened” regulatory environment, he adds, such enforcement risk is even higher. “The agency has sent hundreds of Notices of Penalty Offenses to companies regarding proper conduct concerning the use of endorsements and testimonials,” Villafranco warns. “The agency intends to use these notices to seek civil penalties of up to $43,792 per future violation.”
Just Keep It Clean
So which fate should worry a supplement brand more: FDA letters, or FTC enforcement? Villafranco’s answer is: both.
“In some instances, FTC and FDA will work together to stamp out false or misleading advertising, as the agencies jointly oversee products in the dietary supplement space,” he says. And not surprisingly, they’ve put their tag-team efforts to work even more in the current era.
“In the midst of the pandemic,” Villafranco says, “the agencies have sent numerous warning letters to companies making claims that their products provide enhanced immune support and COVID-19 prevention.”
And if those claims happened to come from an influencer’s mouth—or happened to appear on her TikTok channel—the legal effect is the same: The brand is to blame.
“The takeaway from the recent action in this space,” Villafranco concludes, “is that dietary supplement advertisers need to establish safeguards to ensure that their influencers have clear obligations and guidelines for regulatory compliance. This includes establishing contracts with influencers, reviewing any influencer posts before they go live, and monitoring influencer posts to ensure they remain compliant.”
Check out Villafranco’s to-do list for maintaining successful influencer relationships.
Spell out the ground rules
“Proper compliance begins with setting internal expectations,” Villafranco says. “So a company that wants to use influencers should establish an endorsement policy as a first step—and regularly train relevant stakeholders on it. This policy should cover the requirements for influencer posts and the process for onboarding influencers and ensuring their posts are compliant. Leadership should also regularly review this policy to ensure that it’s legally accurate and consistent with business needs.”
Sign on the dotted line
“Not only does a business need to understand influencer requirements,” Villafranco points out; “it needs to communicate those obligations to influencer talent. A contract is one way to communicate those expectations—such as compliance with laws, including necessary disclosures, and posting content only with the business’s approval. Contracts also legally protect businesses in the event that something goes wrong.”
Approve each post
“Ideally, a business should review each influencer’s post before allowing it to go live,” Villafranco advises. Really? Alas, yes. Why? “This ensures that it’s consistent with the business’s expectations and legal requirements. Influencers shouldn’t be able to move forward with posts without signoff from the business.”
Talk out best practices
“Aside from contractual requirements and review procedures, a business should also regularly communicate expectations regarding posts with their influencers,” Villafranco says. How best to do this? “The brand could develop a one-pager identifying specific requirements—for example, around specific disclosures or prohibited claims for each post”—he says.
Review, review, review
“In addition to reviewing posts before they go live,” Villafranco suggests, “businesses should periodically review them to ensure consistent compliance. If a business identifies noncompliance during review, it should take swift action to achieve that compliance, or have the post taken down.”