This Social Media Influencer Endorsement Policy (the “Influencer Endorsement Policy”) sets forth Daily Harvest’s guidelines and expectations for third parties (“Influencers”) when promoting our corporate brand, products and services to their followers.
Key Regulations and Guidance Governing Social Media Influencer Endorsements – An Overview
Section 5 of the Federal Trade Commission Act – Section 5 of the Federal Trade Commission (“FTC”) Act (the “FTC Act”) protects consumers from deceptive advertising by prohibiting “unfair or deceptive acts or practices in or affecting commerce.” An unfair practice is conduct which causes or has the potential to cause misinformed purchasing decisions to consumers. Deceptive practices are practices which involve a material representation, omission or practice that are likely to mislead a consumer into making a purchasing decision that they would not have made absent the deceptive conduct.
FTC Endorsement Guides – The FTC Endorsement Guides (the “Endorsement Guide”) embody the truth-in-advertising principle that endorsements must be honest and not misleading. The Endorsement Guide contains information about disclosure of “material connections” between advertisers and endorsers and the application of the FTC’s consumer protection principles to social media and influencer marketing.
The Influencer is responsible for making these disclosures and being familiar with the FTC Act, Endorsement Guides and complying with laws against deceptive advertising.
Material Connections and Compliance with FTC Disclosure Guidelines
In accordance with the FTC’s disclosure guidelines, each of the Influencer’s social media endorsements must clearly, obviously and unambiguously disclose their “material connection” with Daily Harvest’s brand. A “material connection” is one which would impact the weight or credibility that the Influencer’s audience gives the endorsement. “Material connections” include personal, family, or employment relationship or a financial relationship - such as free products and/or payment from Daily Harvest in exchange for the Influencer’s product/service endorsement.
Daily Harvest expects the Influencer to comply with the FTC Act and the FTC’s social media endorsement guidelines and disclosure obligations throughout the course of their engagement with Daily Harvest.
Guiding Principles for Effective Disclosures
In accordance with the FTC’s endorsement guidelines, the Influencer must ensure that their disclosure is clear and easy for their audience to read and understand. In addition, the Influencer must prominently display the disclosure with the endorsement post.
The Influencer must also be mindful of the medium and social media platform that they use for the product/service endorsement to ensure that the disclosure is effective and compliant with the FTC endorsement guidelines. For photographic endorsements, the Influencer should superimpose the disclosure over the picture to allow the viewer sufficient time to notice and read the disclosure. For video endorsements, the Influencer should make the disclosure verbally and also superimpose the disclosure language in the video itself. For live stream endorsements, the Influencer should make the disclosure verbally and repeat the disclosure periodically throughout the live stream to ensure that viewers who see only part of the stream receive the disclosure.
Regardless of the social media platform used for the brand promotion, the Influencer must use simple and clear language and/or hashtags that is hard for the Influencer’s audience to miss. Below are a few examples of simple and clear disclosure language and hashtags that Daily Harvest recommends for promoting our brand, which are modeled after the FTC guidance:
- “Thank you [Company] for the free product.”
- “Paid partnership with [Company]”
- “In collaboration with [Company].”
- “[Company] Promoter”
- “[Company] Ambassador”
- “[Company] Sponsorship”
- “Advertisement”
- “Sponsored”
The FTC cautions against the use of short-form or abbreviated terms like “spon” or “collab”, which could potentially mislead the viewer or reader. When using hashtag disclosures, the Influencer must use language that clearly identifies Influencer’s relationship with the brand and should similarly avoid using vague or confusing short-form or abbreviated terms.
Company Product/Service Influencer Endorsement Protocol – Guidelines for Responsible Use
Daily Harvest and the Influencer both have an obligation under the FTC to protect consumers from deceptive advertising by prohibiting unfair or deceptive acts or practices in or affecting commerce. In addition to the necessary disclosures, the Influencer must ensure that their endorsement is truthful and based on their personal experience with the product/service they are endorsing. Daily Harvest expects the Influencer to honestly and transparently include their commercial relationship with Daily Harvest in all social media posts which promote Daily Harvest's brand, products and/or services.
Influencers should keep the following protocol in mind as a guide on what they can and cannot say about Daily Harvest’s brand, product, service they are endorsing:
- The Influencer’s endorsement must reflect Influencers the honest opinion, finding, belief and experience with Daily Harvest’s brand, product or service.
- The Influencer’s endorsement must not make any claims that would be false, misleading or unsubstantiated information if Daily Harvest made them directly.
- The Influencer cannot discuss experience with a product/service that they have not personally tried.
- The Influencer is prohibited from using fake information (including, but not limited to a fake alias or fake post) when promoting Daily Harvest’s brand, product or service.
- The Influencer must promptly correct any false, inaccurate, erroneous or otherwise misleading information in an endorsement post in a manner which visibly apprises the reader that the post has been altered to correct prior misstatements.
Furthermore, the Influencer is prohibited from posting or forwarding written statements, audio, video, pictures or other materials that could be considered offensive, malicious, obscene, harassing or threatening to any readers or viewers, including, but not limited to, Daily Harvest employees, customers, clients, subscribers or followers.
Confidentiality Obligations
The Influencer acknowledges and agrees that if it receives, has access to or creates documents, materials and information of a confidential and proprietary nature (“Confidential Information”) to Daily Harvest or customers of Daily Harvest during the course of the Influencer’s engagement with Daily Harvest, such Confidential Information is an asset of Daily Harvest and/or its customers, must be kept strictly confidential and used only in connection with the performance of the Influencer’s services to Daily Harvest. The Influencer agrees that they will not use, disclose, communicate, copy or permit the use or disclosure of any such Confidential Information to any third party in any manner whatsoever except to the existing employees of Daily Harvest or as otherwise directed or approved by Daily Harvest in the course of the Influencer’s performance of services to Daily Harvest and thereafter only with Daily Harvest’s written permission. Upon request of Daily Harvest, the Influencer will return to Daily Harvest all Confidential Information, including all copies or reproductions thereof, which are in the Influencer’s possession, custody or control.
Negative Behavior
The Influencer represents that it has not and will not take any action or make any statements, in either case that become publicly known before or during and Engagement Term, that a reasonable person would think brings the Influencer into public disrepute, contempt, scandal or ridicule, or that reflects unfavorably on Daily Harvest, its brand and/or its products, or that substantially reduces the commercial value of Daily Harvest’s association with Influencer. Influencer also agrees that it shall not make or authorize any public statements in derogation of Daily Harvest, its brand, products, or personnel, and will not use or depict Daily Harvest, its brand or products in any way intended to or in a manner that is reasonably likely to disparage Daily Harvest, its brand, products or personnel.
Monitoring Compliance with Influencer Endorsement Policy
In accordance with FTC requirements, Daily Harvest will monitor the Influencer’s endorsement efforts to ensure that the Influencer makes appropriate disclosures of any material connection(s) with Daily Harvest’s brand and reflect their honest opinion, finding, belief and experience with the endorsed product/service. Daily Harvest will also review the Influencer’s social media endorsements to ensure that they that they incorporate any required promotional language, hashtags or mentions related to the endorsed product/service, if any, set forth in any agreement between Daily Harvest and Influencer.
Repercussions for Identified Influencer Endorsement Violations
Should Daily Harvest identify any social media posts which violate the Influencer Endorsement Policy, Daily Harvest will take appropriate action against the Influencer based on the nature and extent of the identified violation. Repercussions for violation of the Influencer Endorsement Policy may include, but are not limited to a request for immediate removal of the post from all social media platforms; a post or statement to the Influencer’s followers which corrects the identified violation; suspension of all promotional endorsements; training and/or re-training on compliance with Daily Harvest’s Influencer Endorsement Policy and the FTC guidelines; and/or termination of any agreement between Influencer with Daily Harvest.
