Purpose and Scope
Rich Froning Fitness, LLC (hereinafter “Mayhem”) is committed to transparency and honesty in all of its advertising messages and promotional communications with consumers. One of the most common ways to advertise and market products and services in social media is to use third party endorsements. Like other types of advertising, endorsements must be truthful and not misleading. Consumers must understand when a social media endorsement is sponsored by us.
This Policy applies to all agencies, independent contractors, speakers, writers, bloggers, talent, influencers, and any other individual or entity engaged in promotional communications on behalf of Mayhem on social media. This Policy also applies to our employees and agencies who manage these individuals and entities and employees who promote the company and its products, services and brands on their personal social media accounts. For countries outside the US, Mayhem considers many of the requirements in this policy to be best practices for engaging in social media.
Defining an Endorser Covered by This Policy
An individual or entity communicating on social media is covered by this Policy if its promotional messages about Mayhem or our products, services or brands are sponsored by us (”Sponsored Endorser”). If the individual or entity is acting independently, it is not subject to this Policy.
A message is sponsored by us if we have a material connection with the individual or entity. A material connection is a tie to us which if known to consumers might make consumers question the credibility of the endorser or materially affect the weight consumers place on the endorsement. It puts the endorser’s independence in question. For example, Mayhem creates a material connection if we do any of the following either directly or through an advertising agency, public relations firm, or other third party:
- Hire an agency to blog, post, or serve as a community manager on our behalf (both the agency and its employees then become Sponsored Endorsers).
- Enter into an agreement with an individual to blog or post.
- Pay an individual to blog or post.
- Provide free accommodations or travel to an individual for a company event or experience.
- Provide discounts, sweepstakes entries, or other incentives to an individual.
- Provide an individual with free prizes for giveaways or sweepstakes on social media platforms.
- Provide an individual with free samples to review on social media platforms.
- Provide an individual with free samples after that person has blogged or posted independently, especially if providing the free samples creates the expectation of additional free samples (which makes the individual a Sponsored Endorser going forward, not retroactively).
- Engage affiliate marketers to advertise, blog, endorse, or sell on our behalf (making the affiliates and their employees Sponsored Endorsers).
Mayhem can turn our everyday consumers into Sponsored Endorsers by:
- Establishing a consumer marketing program that gives members free products, services, coupons, discounts, or other benefits.
- Providing incentives to consumers to review our products or services.
- Requiring sweepstakes or contest participants to post photos of our products or brands as part of their entries.
This list, though comprehensive, is not exhaustive. Check with the Mayhem legal for any questions about whether Mayhem behavior or actions has created or will create a material connection with a third party.
Note that Mayhem employees have a material connection to Mayhem so are also considered to be Sponsored Endorsers. Employee behavior as to use of social media is addressed more comprehensively in a separate employee policy, Mayhem’s Employee Handbook. However, this Policy requires employees to clearly and conspicuously disclose their connection to us when promoting Mayhem or our products, services or brands on social media. Recommendations and requirements for clear employee disclosure language are listed in Appendix A to this Policy.
Sponsored Endorsers Must Comply with Our Standards of Conduct
With respect to promotional statements or other claims made on social media platforms about Mayhem and our products, services and brands, Sponsored Endorsers must adhere to the following principles:
- They may only make statements that:
- reflect their honest beliefs, opinions, or experiences; and
- are transparent about their connection to us.
- They may not:
- make deceptive or misleading claims to consumers about our products or services, or our competitors’ products or services;
- make any claims about our products or services, or our competitors’ products or services, that are not backed up by evidence;
- disclose any of our confidential information;
- engage in any communication that is defamatory or infringes upon the intellectual property, privacy, or publicity rights of others;
- offer for sale or solicit products on behalf of Mayhem;
- make offensive comments that have the purpose or effect of creating an intimidating or hostile environment;
- use ethnic slurs, personal insults, obscenity, or other offensive language; and
- make any comments or post any content that in any way promotes unsafe activities that could lead to an unsafe situation involving Mayhem’s consumers or other individuals.
- They must adhere to:
- any additional guidelines provided by Mayhem, such as brand-specific program requirements.
Sponsored Endorsers must also refrain from creating fake followers or engagement on social media platforms, such as:
- Buying followers.
- Using bots to grow audience size by automating account creation, following, commenting, and liking.
Disclosing a Material Connection Clearly and Conspicuously
When posting about our products or services, Mayhem requires Sponsored Endorsers to disclose their material connection to us clearly and conspicuously. If a Sponsored Endorser has multiple material connections to us, the full extent should be disclosed.
This policy does not require specific language to disclose a material connection, but Sponsored Endorsers must communicate the material connection effectively so that consumers:
- Can easily find it.
- Can easily understand it.
- Obtain sufficient information to make a judgment about the credibility of the endorsement.
Consult Appendix A to this Policy for examples of language that successfully communicate a material connection and language that does not do so.
To ensure a disclosure is clear and conspicuous, appropriate consideration should be given to the limitations and nature of the platform being used. Sponsored Endorsers must:
- Ensure the disclosure is:
- well-placed so it can be easily noticed; and
- prominent so it can be easily read.
- Avoid burying the disclosure:
- in a bio;
- below the fold;
- in a hyperlink, like a “Legal” or “Disclosure” button; or
- among a series of hashtags, other disclosures, or general copy.
- Superimpose a material connection disclosure on images, including on Snapchat and Instagram Stories. The disclosure should be:
- easy to notice and read in the time that followers have to look at the image; and
- well-contrasted against the image.
- In video posts, including podcasts:
- place the disclosure both within the video itself, and in the description of the video; and
- display the disclosure long enough for a consumer to be able to read and understand it.
- In Instagram posts, disclose a material connection before the “More” button.
- For a live stream, repeat the disclosure as needed to ensure that consumers see it or keep it posted throughout the live stream.
- If the posts are part of an online chat or tweets, or a similar thread, make the disclosure clearly in the first entry into the conversation thread, and then add to subsequent entries at 10 entry intervals depending on the media and the length of the thread.
- Disclose the material connection even when just tagging a product in a photo.
- For a television, podcast or radio talk show appearance, disclose the material connection verbally when promoting our products, services or brands.
If we ask consumers to promote our products, services or brands on social media in exchange for the chance to win a prize, the official rules must require entrants to disclose the fact that the entrant’s post is an entry into a contest or sweepstakes. Whether the products, services or brands are promoted in a text, a hashtag, a photo, or a video, the entry post must include some clear and conspicuous indicator that the consumer has received an entry in a promotion in exchange for the post. For example, the official rules could require entrants to use a specific hashtag disclosing that the post is a sweepstakes or contest entry. Failure to make the disclosure should disqualify the entry.
We should avoid encouraging endorsements that use features that do not allow for clear and conspicuous disclosures, such as likes, Pins, or shares, if the absence of that disclosure is likely to be misleading.
If we run a social media endorsement campaign outside the US and the product or service is sold in the US, we must require a disclosure if the posts are likely to be seen by and to affect US consumers.
A social media platform may have a required tool or feature for paid endorsements. Although these tools or features must be used to comply with the platform’s rules, they should not be relied on alone to meet FTC disclosure requirements.
What We Must Provide to Sponsored Endorsers
When Mayhem engages a Sponsored Endorser, either directly or through a service provider, the Sponsored Endorser must sign either:
- An agreement outlining the business terms of the arrangement and the guidelines set forth in this Policy.
- A statement agreeing to comply with the guidelines set forth in this Policy.
Mayhem must also provide Sponsored Endorsers with:
- Message points, facts sheets, or other similar talking points about the products or services at issue, that do not necessarily prescribe what the endorser should say, but include:
- a list of claims about the company’s product or service that the company has substantiated; and
- guidance on what the Sponsored Endorser cannot say about the company’s product or service.
- Links to or copies of FTC guidance on endorsements (which can be found on the FTC’s website), specifically:
- Guides Concerning the Use of Endorsements and Testimonials in Advertising (Endorsement Guides).
- The FTC’s Endorsement Guides: What People are Asking.
- The Do’s and Don’ts for Social Media Influencers.
- Disclosures 101 for Social Media Influencers, and its associated video: Do you endorse things on social media?
- General guidance on the FTC Endorsement Guides and encouragement to educate themselves on all FTC endorsement guidance. For example, inform Sponsored Endorsers that:
- they should not assume their followers know about their connection to us;
- opinions should be based on their own honest beliefs and experiences;
- they should refrain from making statements about our products and services that are measurable, other than those on the fact sheets we have provided; and
- any comparisons must be based on actual, personal experiences with all products being compared because they should not extrapolate beyond personal experiences. For example, a Sponsored Endorser could say “I liked the Mayhem fitness program the best of the fitness programs I tried,” but should not say “No other fitness program works better than the Mayhem fitness program” because the endorser probably has not tried all the fitness programs comparable to Mayhem’s.
We should advise Sponsored Endorsers that we plan to monitor their posts to ensure the accuracy of any measurable claims they make about our products and services and that they have adequately disclosed their material connection to us.
Monitoring Sponsored Endorsers
Employees responsible for Sponsored Endorser relationships or campaigns must regularly monitor the postings of Sponsored Endorsers, either directly or through their agencies. Employees must also ensure that:
- Every Sponsored Endorser campaign or relationship has monitoring responsibilities clearly identified. If one of our service providers is to conduct the monitoring:
- it must be given appropriate training on this Policy; and
- its contract or statement of work must make it responsible and liable for monitoring.
- Sponsored Endorsers:
- always disclose their material connection to Mayhem in a clear and conspicuous manner;
- are not making unsubstantiated claims about our products or services; and
- are otherwise complying with this Policy and any other guidance we have provided.
- Contest and sweepstakes entries that promote our products, services or brands in social media are included in the monitoring, and entries that fail to use a material connection disclosure are disqualified.
- Monitoring of a Sponsored Endorser continues for a minimum of four weeks past the end of our relationship (for example, the contract expiration date or the last time we sent free samples). For longer campaigns or relationships, it may be necessary to monitor for more than sixteen weeks.
When a Sponsored Endorser Fails to Comply with This Policy
Mayhem must correct any failure to disclose a material connection or communication of any unsubstantiated claims by a Sponsored Endorser. The employee team responsible for the Sponsored Endorser must take the following steps:
- If an agency or other third party manages or is otherwise involved with the Sponsored Endorser relationship, alert the third party to the issue.
- Consult with Mayhem legal team to determine whether a correction is needed, and how best to make it.
- If needed, require the Sponsored Endorser to make the correction or post the correction on the Sponsored Endorser’s post or page directly.
- Determine if it is necessary to:
- withhold payment from the Sponsored Endorser; or
- terminate the relationship with the Sponsored Endorser.
All written agreements with Sponsored Endorsers must give Mayhem the right to take any of these corrective measures for noncompliance with this Policy.