Influencer Marketing: Top Business And Legal Considerations For 2020

Author:Mr Vejay Lalla and Shizuka Tiernan
Profession:Fenwick & West LLP

Although influencer marketing is an ever-larger part of marketing budgets, questions have arisen about the longevity of influencers as a marketing channel. In addition, marketers are grappling with how to ensure that they and their influencer partners stay within regulatory bounds, and how to become better at measuring the true impact of influencer campaigns. In this article, we discuss what the Fenwick team has learned about influencer marketing programs following numerous conversations we have had with clients, industry professionals and in-house counsel, summarizing the principal issues marketers and their partners will need to consider in 2020.

The Current Landscape

Although regulators have been sounding the horn for a number of years—including calling for more specific enforcement and guidance efforts in recent months—not all influencers have adapted their disclosure practices to comply with regulations. Also, many businesses are still in the early stages of formalizing their influencer programs, focusing on hiring in-house marketing expertise and developing legal, marketing and related internal and external policies. In addition, marketers are trying to better understand the true impact of influencers' campaigns, to determine whether to spend more or less time and budget on such efforts.

With the potential for 'likes' to be eliminated from platforms such as Instagram, measurement and fraud monitoring are likely to continue to be the focus of many marketers, along with ensuring transparency in marketer relationships with influencers and their own followers. As marketers evolve their practices, influencers and social media platforms must follow if they are to maintain influencer marketing as an impactful marketing channel.

Finally, along with regulatory and measurement challenges, influencers are becoming more and more like celebrity talent. Contracting with such influencers has therefore changed, and more formality will be needed in these arrangements for both parties.

Issues to Follow in 2020

The following list of key issues facing the industry in 2020 should provide guidance to those of you engaging in influencer marketing and contracting with influencer partners:

Monitor continuous regulatory developments. Regulators continue to closely monitor this space. The FTC has been very active, publishing specific guidance for brandsand, more recently, for influencers themselvesthat can help guide compliance. State and federal regulators...

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