From this little blurb, it is obvious – at least to the business/legal-minded among us – that Levi’s sponsored the event, and that both Medine and Oh were compensated for their participation. The fashion insiders reading know that professional bloggers/influencers earn a living by getting paid for attending events just like this. While this fact may be obvious to some of us, the FTC has been very clear in indicating that such insider knowledge does not allow bloggers and brands to avoid including “clear and conspicuous” disclosures in their promotional materials, whether they be blog articles or social media, etc. In short: if such posts are being used for commercial purposes (aka to advertise something, such as a product or an event) and the posts are likely to appear to the average consumer as anything other than an ad, they are required to include a “clear and conspicuous disclosure” alerting consumers to the fact that it is an advertisement.
And the “average consumer,” see, is — not like us businessy-legal-brained savants – a idiot.
Wait, there’s more! The Fashion Law goes on to more or less scream to the FTC waiving a Chanel scarf to get its attention in the hope that it will indict these miscreants and turn these runway walkers into perp walkers:
So, given the influence of social media stars, such as Medine, nearly any contract they sign either explicitly or implicitly comes with the expectation that they will promote the event and/or draw a following to the event based on their influencer status. This is exactly why brands sign on to do projects with influencers. As such, I think it is very safe to say that anyone would be facing a very uphill battle of they wanted to show that the social media posts here fall outside of the scope of the FTC’s disclosure requirements.
This leaves Levi’s open to investigation and potential legal ramifications by the FTC for not ensuring that Medine and Oh made the required disclosures. And while the FTC is not in the business of going after influencers (yet), Medine and Oh, with their expansive influence and level of sophistication in terms of blogging and social media, could also be held accountable, as the FTC has the ability to charge influencers right along with brands.
THERE’S MORE TO IT THAN JEANS
In light of such potential violations, it is tempting to ask: Why does any of this matter? Well, aside from the fact that failure to abide by the FTC Act is a violation of federal law, and in most cases is done with willful disregard for the law (and not a mere mistake), such failure to disclose goes against the premise that consumers should be given adequate information regarding non-traditional advertisements. . . .
Okay! Okay! We get it! Bad stuff happening right here and if the law doesn’t stop it consumers will get confused because as everyone knows fashion writers and promoters, whether in social media or otherwise, are never on any kind of the take at all!
Thought no one, ever. Especially no one who ever read the unsparing, incisive harsh that emanates from The Fashion Law in the direction of the fashion industry (and when Julie is done schooling you on it, you see it as just that — an industry) for a week or two, not least her recurring coverage of the sycophantic nature of everyone and everything that purports to be media “coverage” of it. What makes it amazing is that Julie does this while still, at least it appears to me, still loving at least something about the whole mess besides the pretty stuff on the hangers.
Disclosures:
- I am jealous of Julie Zerbo, whose blog emerged out of nowhere, in no time, to be bigger, better and more glamorous than my little cow shed here, while being even more iconoclastic than LIKELIHOOD OF CONFUSION® in a field in which I am notionally included (“fashion law”)
- I am embarrassed that I don’t really know this FTA regulation stuff and that no one offers me any swag at all, though I am sometimes offered free carwash tickets if I will link to the web sites of certain mesotheleoma law firms
- You guessed it — Julie Zerbo won’t follow @likely2confuse on Twitter
- OK, damn it. Julie Zerbo doesn’t even know I’m alive
It should be self-evident to the reader that all of the foregoing was already evident to the reader before I “disclosed” it, and whether it influenced my views in writing it — or the reader’s in evaluating it — is probably not something anyone needs the gummint to help us manage.
Which, if you’re not all that businessy-legally-minded, I will just spell out for you, is my point.
Well, I’m not claiming to know what Julie’s undisclosed interests may be here. For all my snark, it’s not obvious that she has anything to be jealous about; I don’t think she really competes with these “fashion influencers” in any way. In fact, at the end of the day (and yes, thankfully, the end of this also very long post) it appears that she’s schooled on this topic; is very engaged in the ins and outs of how the fashion racket does what it does; and is righteously indignant.
Julie doesn’t know about creaky old LIKELIHOOD OF CONFUSION®, but if I were giving advice over a cup of coffee I’d probably say, well, you’re right on the law, but probably the law is, as I said before, stupid, and a sharp lawyer and businesswoman like you should probably use your jealousy-worthy platform to argue for getting rid of that stupid, condescending and ineffectual regulation and have the FTC focus on things that matter to people’s actual health and welfare instead of waiting for private litigation to drag them into it.
Then we can all go to focusing not on illegal acts or inconsistent application of regulatory oversight but on crass, cynical manipulation of, well, things as momentous as, um, whatever it is they were talking about — styles, or things to wear, and stuff.
Whatever. I’m above all that.