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Are your social promotions legally compliant?

4 min read

Brands & Campaigns

Sophisticated marketers have a lot on their minds these days, such as developing and reaching audiences, creating consumer connections with meaningful content and campaigns, demonstrating business results — and, of course, doing it all in compliance with legal rules and guidelines.

The Federal Trade Commission recently completed an investigation into a Pinterest-based contest conducted by fashion brand Cole Haan. The contest asked participants to create Pinterest boards called “Wandering Sole” and pin five images of shoes from Cole Haan’s own board and five additional place images, all tagged #WanderingSole. The most creative entry, as judged by Cole Haan, would receive a $1,000 shopping spree.

In a public letter to Cole Haan’s counsel, the FTC expressed concern that the re-pinning of product merchandise without a clear indicator that the pins constituted a contest entry may have violated Section 5 of the FTC Act, which “requires the disclosure of a material connection between a marketer and an endorser when their relationship is not otherwise apparent from the context of the communication that contains the endorsement.”

The FTC chose not to pursue any action against Cole Haan, but the incident has raised questions in the minds of savvy social marketers. Many of our customers have wondered how the ruling impacts their plans for social promotions, particularly as they tap into the growth of user-generated content being created and shared on networks such as Twitter, Instagram and Pinterest.

In light of the Cole Haan incident, I wanted to share a few key considerations for marketers running promotions and campaigns incentivizing user-generated content:

Require participants opt-in to contest terms & conditions
When it comes to terms and conditions, many marketers are balancing guidelines from a host of sources, including national and local restrictions, terms of use for multiple social networks, and individual company policies. Incorporating these in a single set of campaign terms and conditions and ensuring that participants are exposed to them through the promotion entry process can be tricky, as participants learn about the contest from a variety of sources. One best practice to ensure visibility is to require participants to claim their entries on social media, which can include confirming understanding of terms and conditions.

Suave’s recent #RadiantWishes campaign, held in conjunction with a new product launch, required contest participants to tweet with a hashtag, then go through an automated claim process to be eligible to win. Post-tweet, people received an automated auto-response directing them to a custom form to “claim their entry” and provide additional information, including demonstrating that they’ve accessed the campaign terms and conditions. This authenticated claim flow also allows you to manage permissions for content re-use in other channels and collect valuable consumer contact and demographic information.

Clearly signal that user content is promotion-driven
As advertising lawyer Terry Seligman noted in MediaPost, the issue could have been avoided by having participants indicate that the product images were pinned as part of a promotion. Keep this in mind as you structure your campaign.  Hashtags are one easy and common way to aggregate content entries.

You could signal the promotion with the hashtag itself, by including words like “promotion” or “giveaway.” If you’re using your brand or another evergreen hashtag, you could add a second hashtag (e.g., #Sweeps or #ChanceToWin), or mandate inclusion of other text, such as “contest entry” or “I want to win _____.”

An additional benefit is that clear language help promotes the campaign to people who see the social content but aren’t aware of the promotion, driving higher overall participation.

Encourage creativity
The FTC investigation was triggered by the initial requirement to post Cole Haan shoe images. Think bigger. You can learn a lot about your audiences’ interests and even their perceptions of your brand by asking them to post or pin non-product content that evokes some association with your brand or products.

For example, Scribd and Lonely Planet recently partnered on a campaign asking people to pin images of their ideal book nook. These types of brand-relevant promotion don’t require endorsement, thus avoiding the stipulations under Section 5. And you might be surprised by what you learn!

Kevin Bobowski is the VP of Marketing for Offerpop, a New York-based social marketing software company that powered the first use of a hashtag in a Super Bowl commercial in 2011, in the ‘#ProgressIs’ campaign by auto manufacturer client Audi.