By Jessica Bernard and Thaddeus Hoffmeister
February 5, 2018

New York Fashion Week starts this Thursday, but Kanye West unveiled his new line a week early on the digital catwalk—Instagram. Last week, the social network’s feeds were flooded with photos of various models—such as Paris Hilton, Jordyn Woods, and Amina Blue—posing as Kim Kardashian lookalikes, platinum wigs and all, wearing the Yeezy label.

The informal nature of the paparazzi-style Instagram photos felt innovative to many—a commercial advertisement without a sales pitch, just a hashtag: #YeezySeason6. In describing the rollout, the New York Times called it “the most successful thing Mr. West has ever done in fashion.”

West’s campaign undoubtedly caught the fashion world’s attention. But he and his collaborating models may have broken the law in doing so if those models received some benefit from the Yeezy label—even the clothes used in the photo shoot—and failed to disclose this fact. The issue of influencers promoting brands or products on social media, especially Instagram, without proper disclosures is a growing problem calling for Federal Trade Commission (FTC) interdiction.

The FTC is responsible for preventing false or misleading advertising, requiring brands and influencers to disclose any “material connection” between them in a “clear and conspicuous” manner regardless of whether that advertising occurs on or offline. Material connections include business or family relationships, monetary payments, and even gifts of free products. The FTC, unlike its European Union counterpart, doesn’t prescribe what words or terms will provide consumers sufficient notice of a material connection. Instead, the commission recommends using unambiguous language and making sure the disclosures stand out. This latter requirement may pose some challenges on social media sites that place limits on character use or text formatting. Nevertheless, disclosures can be made; for instance, #YeezySeason6 could be replaced with #adYeezySeason6.

Not surprisingly, both brands and influencers are reluctant to include terms such as “ad,” “promotion,” or “sponsored” for fear of turning so-called organic social media moments into traditional advertising campaigns, which might then decrease consumer engagement. Despite this hesitance, disclosures are needed more on social media than other forms of communication because, in the online world, the material connection between influencer and brand may be less obvious than on platforms like television or radio.

To date, the FTC has initiated a formal cause of action against only one Instagram advertising campaign. In 2015 Lord & Taylor paid 50 fashion influencers $1,000 to $4,000 to post a photo of themselves wearing a paisley dress with the hashtag #DesignLab—a strategy strikingly similar to West’s recent campaign. The Instagram selfies did not include any type of disclosure language showing a connection between the influencers and Lord & Taylor, which owned the DesignLab label.

Ultimately, the FTC settled with Lord & Taylor. The settlement agreement did not impose any monetary penalties but did establish a monitoring and review program for the company’s future endorsement campaigns and prohibited it from misrepresenting any future endorser as an independent or ordinary consumer.

Last April, it appeared that the FTC was taking a tougher stand on this issue when it sent 91 letters to brands and influencers on Instagram for failing to make adequate disclosures. Of these letters, 45 went to brands and 46 to influencers, including Kourtney Kardashian. The commission followed the April barrage with 21 additional letters to influencers, requiring them to reveal their financial arrangements with brands.

It appears that the FTC is making progress policing Instagram, but the commission needs to begin initiating formal complaints and imposing real penalties. While all violators on Instagram need not be prosecuted, making an example of a small handful will send a powerful message to others. The #YeezySeason6 campaign would be a good place to start.

Jessica Bernard is a third-year law student at the University of Dayton School of Law. Thaddeus Hoffmeister is a professor of law at the University of Dayton School of Law and author of Social Media Law in a Nutshell and Social Media in the Courtroom.


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