Product endorsement, sponsored content

October 8, 2018, By

Are you an Instagram influencer using your extensive following as a commercial asset through sponsored content and collaborations?

Or are you a brand seeking to give your products more exposure through strategic product placement on social media or at events?

Either way, product endorsement deals are a great tool, as they make it possible for products to be seen by a very large audience, for a fraction of the price of traditional advertising – and can provide a neat source of income, as well as perks and freebies!
Whether you have been approached to endorse a product, or you are a brand approaching individuals, there are some important issues which you need to consider before anything can be agreed.

Discuss and agree the key terms

This may sound obvious, but both parties need to make sure they are on the same page. If a brand pays a social media user to post sponsored content, how many posts are required? What social media platforms are covered by the deal? Do the posts need to be a certain number of days apart? How prominently does the product need to feature?
Exclusivity and duration are particularly important considerations – does endorsing one product mean that you can no longer use competitors’ products? And for how long?
These are just some examples of the many issues you need discuss with the other party as early as possible, to avoid any disagreements later on.

Get it in writing

As with any commercial agreement, it is always best to have a written, signed contract between the parties. The key benefit of a written contract is that it encourages the parties to discuss the precise terms of the deal, and hopefully understand each of its provisions, before signing. Of course, a written contract is also easier to enforce in the event of a dispute later on.
If, for whatever reason, it is not possible or desirable to get a written contract, make sure you keep a record of the key terms in writing, in case you need to rely on them later. For example, save any emails, DMs or text messages (screenshots if necessary) of any discussions in which terms are agreed.

Consider any T&Cs of the relevant platform

Most social media sites and platforms have their own guidelines on sponsored content – this is usually found in the Terms and Conditions. Make sure you read through those before agreeing a deal, and remember that different platforms may have different rules.
Any agreement between brand and influencer also needs to consider who is responsible for checking this, as non-compliance could result in the sponsored content being taken down, or even an account being frozen or banned.

Make sure you comply with the ASA’s published guidance

The Advertising Standards Agency monitors and regulates advertising in the UK. Because of the increase in sponsored content on social media and so-called “viral” advertising, the ASA have started putting pressure on social media platforms to make it abundantly clear which posts are sponsored.
The ASA have recently published extremely helpful guidance on the subject, which is available here. It is vital for both brands and influencers to consider, and fully understand this guidance, as non-compliance can lead to ASA sanctions.
For example, the guidance explains that sponsored content needs to be clearly marked as such, through hashtags such as #ad, #advert, #advertising etc. Wording like “sponsored content”, “in association with”, “thanks to [brand]” is not sufficient to comply with this provision.
The guidance also flags that for some types of product, which are subject to heavier regulation (food, alcohol, medication) great care must be taken even with sponsored content.

Ensure there are no conflicts

Finally, always keep track of both your current endorsement deals, as well as those of the other party to the deal.
You need to stay on top of your own deals to ensure you are not breaching a clause preventing you from entering into an agreement with a competitor, or for a certain type of product. This could cause liability for breach of contract, and effectively jeopardise two endorsements.
Doing your research, and being aware of the other party’s current deals is just as important. You want to avoid signing a deal, only to find out later that all other sponsored content by this brand or influencer is completely at odds with your values or image.

How we can help

These are only some of the issues which you need to have on your radar when considering an endorsement of any kind. It is always best to seek independent legal advice when entering into a binding agreement, to ensure that you fully understand the terms of the contract you are signing, but also to limit your liability as much as possible if things do go wrong.

Some specialist law firms offer discounted fees for social media endorsement agreements, so it is always worth getting in touch as early as possible to avoid nasty surprises with your latest sponsored content.

Written by Joshua Schuermann

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