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ERSP Recommends That Yoga Apparel Company Modify Instagram Posts to Disclose Material Connection Between the Brand and Influencers

The Electronic Retailing Self-Regulation Program (“ERSP”) has recommended that Alo, LLC (“Alo Yoga”) modify the Instagram posts of certain influencers of its products to disclose the material connection between Alo Yoga and the influencers.

Alo Yoga is a yoga company that sells men’s and women’s yoga apparel, yoga mats, props and accessories. The company also has yoga studios and sells passes to its classes online. As part of an investigation, ERSP reviewed approximately sixty (60) Instagram accounts of influencers who promoted Alo Yoga products without any disclosures regarding a material connection between the influencers and the brand. ERSP suspected that the influencers had a material connection to Alo Yoga, a suspicion that was substantiated when Alo Yoga confirmed to ERSP that most of the influencers were materially connected to the company, with the majority of those influencers receiving monetary payments or free products in exchange for promotion of the brand on social media.

ERSP concluded that such Instagram posts constitute endorsements and thus must comply with the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising (“FTC Guides”). In particular, ERSP noted that Alo Yoga should require the influencers it engages to clearly and conspicuously disclose their relationship with Alo Yoga in their social media posts.

Interestingly, Alo Yoga explained to ERSP that it drafted “Alo Yoga Ambassador Program Guidelines” based on the FTC Guides, and that it distributes such guidelines to each influencer it engages. ERSP maintained, however, that the FTC Guides attribute responsibility to both the influencers and the brands themselves.

In addition to recommending that Alo Yoga modify the Instagram posts, ERSP recommended that advertisers establish internal programs to train and monitor the social media influencers with whom they engage regarding their disclosure obligations.

Takeaway: The ERSP recommendation serves as yet another reminder to advertisers and influencers that they must comply with their disclosure obligations relating to social media posts. Moreover, it is not sufficient for advertisers to merely distribute a policy to influencers regarding compliance with the FTC Guides. Rather, advertisers are required to both train and monitor influencers for compliance and to take corrective action where necessary. 

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