Now granted, is that gonna get you out of a influencer?

Goes out there and says stuff that one isn't truthful is false about the product.

So I see

that and I send you a cease and desist take down notice

and you don't take it down.

Then the

That's on the influencer.

That's gonna be at the influencer.

Because at that point, I mean if you're talking to regulators, it's like we're

trying to actively get this down.

Like you can't just like send a letter and be like, Hey, they'll break your links.

Break your links.

You're my lawyer,

and you get to give me three, four steps that I need to take

every time I hire an influencer.

What is it?

Number one.

Make sure that.

Did you know most influencer marketing is not legal?

Brands are paying influencers without proper disclosures, and

the FTC is coming after them.

I'm Emma Rainville, your co-host with Ryan Pote of Gordon Reese, and we

have created a spinoff of special ops podcast called Marketing On Trial.

We've come together to help you implement true compliance into your direct

response online or e-commerce brand.

Our topic today is influencer marketing and how to be compliant.

If you stay till the end of the show, we're gonna have a checklist for you free

of charge called the Influencer compliant.

Checklist, so stay tuned for that.

Ryan, the state of influencer marketing in 2025, I actually, when we were going

through, we don't really plan these out, but we were picking topics and

so when we were picking our topics, I said, ah, this one's probably gonna

be the most boring and the fastest.

And you're like, this is the most important.

Why?

No?

Well, I think one of the biggest reasons is the FTCs trade

regulation rule on consumer reviews, endorsements and testimonials,

immediate access to civil penalties.

So that just ups the ante for compliance, but it's really easy to comply with.

It's just people do it incorrectly all the time and just assume that they can

rely on the platforms or, you know, hope that their influencers are gonna

go out there and do exactly what.

What the brand has told them to do.

Also, I think most brands that engage most influencers, they're

contacting each other and they have no idea that there is compliance.

I believe that.

So can I give you a couple examples?

Sure.

We'll do three quick examples.

Hotel contacts.

Ryan, who has 120 followers because he loves fishing and he posts videos of

them fishing and he's not even really monetizing any of it, but the hotel

is on, like this fly fishing lake.

Is it a lake?

I don't know.

Um, this place where people like to fish.

And they contact you and say, Hey, come stay for free.

Eat for free.

Drink for free.

Fish for free.

You paid to fish, I don't know, fish for free.

And just post about our place so that the people who watch your

show will wanna come fish here.

Yeah.

That, that's gonna be a testimonial or endorsement the person is

receiving that they need to disclose.

That.

They need to disclose.

How do

they disclose it?

A couple different ways.

Um, you could do it in the body of.

The endorsement.

Okay.

Or the testimonial be like, Hey, this is Joe from Fish USA, or whatever it is.

You know, this is Joe, we're on the lake and so and so, they flew me out

here to show me this great place.

Like you're embedding this in a more organic way, saying,

Hey, like they brought me here.

I receive, yeah, I'm receiving all, so there's a relationship with the brand and

that I'm being incentivized in some way.

And so that should put the consumer on notice.

Hey, by the way, you might want to be careful.

I mean, I'm getting something and so this might have influenced what I'm saying.

Okay.

But hopefully it's gonna reflect their experience.

Okay.

Donut shop gets approached by influencer who does lots

of taste tests of local food.

Mm-hmm.

Austin, Texas, where I live.

Local, tons and tons and tons of local food.

We have a donut shop here that I won't.

Say the name, but we have a donut shop here that has the most incredibly

strange donuts you've ever seen, but they're allegedly delicious.

And so she contacts them and says, Hey, I'll make a TikTok of me tasting

your donut and telling everybody how amazing it is, and that if you're

visiting Austin, Texas, they should come to Austin because I have Austin Eats.

Mm-hmm.

TikTok.

Yeah, sure.

Come on and get a free donut.

I get in trouble from the FTC for that.

Now the second you start incentivizing them to

post something about you.

Yes.

Even though they approached me,

even if they approached you, it doesn't matter.

I just

gave 'em a free donut.

Doesn't matter.

Third one.

Last one.

I'm a large brand and I sell $500 million.

And I approach a large celebrity and I pay them a hundred thousand dollars

to post my, using my brand four times and they say, Ooh, I love that.

I partnered with so and so.

My skin is so much clearer now.

Mm-hmm.

Compliant.

She's partnering.

Yeah.

I, I don't think you're gonna run into an issue there 'cause.

I think for two reasons.

One really well-known celebrity.

Okay.

And then two, when they start, when you hire a really big celebrity,

okay.

You know, insert famous person's name.

Sure.

And then they're like, look at my brand of vodka or skin cream, or

whatever it is most of the time.

And there's a counter argument for that where the FTC address as

this and some guidance that, you know, there, a reasonable person

would see this as like, well.

You know, you don't have like an A-list celebrity sitting up there talking

about some product that they just love out of the kindness of their heart.

They're being compensated for it, which is why when you

turn on the television, right?

Okay.

When you see George Clooney talking about an alcohol brand or the Kardashians

about something else, no reasonable person's gonna think that they were

doing that just because they wanted.

I

don't know that I agree with you.

Why,

um, George Clooney, you know, he looks like an alcoholic to me.

Seems like, seems fair.

Just seems fair.

Maybe he's not, I don't know.

Definitely looks like he pushes some back.

But let's take the Kardashians.

There is no aspect of the Kardashian's life that isn't lived out on tv.

From divorces to births, to lies, to big mistakes, to sisters fights,

to hair dye, to lip injections, to botch surgeries, to mental illness.

Mm-hmm.

Cheating.

Like they live everything.

They wake up in the morning, they get in their glam chairs.

You watch them get all of their stuff.

They talk about the things that they love, their salads that they like.

Are they partnering with lemons?

Like you could certainly just take it and think that it's

just part of their every day.

No, very true.

And that's why the FTC has come out and said yes, using a celebrity

is like one of these factors,

but saying partner is enough.

But

partner is not enough.

Okay.

To make a material connection, disclosure, there's really two portions.

Okay.

We need to put the consumer on notice that there's a relationship

between you and the brand.

So we're partners.

We're partners, but then the whether or not the person providing

that endorsement or testimonial is actually being incentivized.

So it's free for, can you believe

I get paid to use this skincare product?

I think you're gonna be fine with that.

Okay.

What if I just put hashtag ad?

Hashtag ad should be fine.

Okay.

Because you know I was about to do some.

Yeah, but it depends on where it's.

Where it's appearing.

So if you're on Instagram, is it below the fold?

And so is it, you know, hashtag ad at the very end of a lengthy discussion

about the product buried amongst, you know, 15 Yeah, 80 hashtags.

That's what I was gonna say.

No, it needs to be at the top.

And the FTC says that it needs to

be the first hashtag.

Yeah, it

needs to be the first hashtag, not only the first hashtag.

The FTC would say that it actually needs to be above the text.

So you can get into these debates with Okay.

Regulators over where it should be.

But the FTC is gonna say the material connection.

Disclosure needs to be unavoidable.

You couldn't possibly miss this, that the consumer would read this and understand,

okay, well this person's receiving something or it's an advertisement

or promotion for some sort of brand

from an operational standpoint to not kill conversions.

I would choose my way where the person is disclosing in a way that's

letting their audience who loves.

Them know that they love the product while still disclosing it.

Like, can you believe I got to partner with them and I get paid to actually do

this, or I get paid to use this product, or Can you believe that I get this product

for free just for posting it on here?

Like I would spend money on this every day.

You know what I mean, as you're looking at yourself.

So I would certainly do it that way from an, from an operational standpoint.

Well, yeah.

And so, so many of the platforms now having the built in paid partnership.

Yeah, yeah, yeah.

Things like that.

Now the FTC has come out and said, you can't just rely on that.

But even their kind of discussion about communic, you can't

rely on it because it might not

show up

every time.

It

might not show up every time, or it's not prominent enough.

But if, if it shows up, is it enough?

Ryan's saying, I think it's fine, especially in the meta platforms.

I think it is very clear when you're using the paid partnership,

I mean, it's right at the very top.

I mean, you can't, it either

says sponsor or paid partnership or can't.

Yeah, you can't, you can't

actually get to what they're saying without missing that.

Mm-hmm.

I mean, I guess if you're not, don't have your glasses on, but

I think that's pretty low risk.

Okay.

Um, alright, so let's talk about risk.

I'm the brand, you're the influencer.

Um, we go into partnership, the disclosures, the FTC doesn't feel

like the disclosures were enough.

They go after you or me.

Both could be liable, but practically it's gonna

be the brand every time.

Okay.

Even if,

even if our contract says that you're responsible.

Yes.

Um, I mean the contract is great to have.

Mm-hmm.

'cause you're gonna say, you know, the contract will say, I tried

to in good faith,

yes.

Like, do what I'm

supposed to do.

And this influencer's off the fricking rails.

Like give them the material connection.

Disclosure and every single post that you put on social media about our

brand, this is what you must say.

Now granted, is that gonna get you out?

If an influencer goes out there and says stuff that one isn't truthful is false

about the product, okay, and I see,

I see that and I send you a cease and desist take down

notice, and you don't take it down,

then that's, that's on

the influencer.

That's gonna be at the influencer.

Because at that point, I mean, if you're talking to regulators, it's like

we're trying to actively get this down.

Like you can't just like send a letter and be

like, Hey, but break your link.

Break your links.

Break your links that they're using if you do that, okay, I don't

wanna get too hung up on that.

Thank you.

That's really good information.

So if you, you're a brand and you hire me as an influencer,

actually, I'm not gonna do that.

You're my lawyer and you going to give me three, four steps that I need to

take every time I hire an influencer.

What is it?

Number one, make sure that the influencer actually uses the product.

So there have been instances where you have these influencers that just

like come to you and they're like, Hey, can I just promote your brand?

Can I promote your brand?

Like they just want either free product or money.

They don't really care how great the product is.

They just want to be something.

Yeah,

absolutely.

Right.

So I mean, some of that goes authenticity.

I didn't know

they had to use your brand.

Oh, they absolutely, they have to use the product

at least once.

Right?

Well, like if they're saying if

it's a product review,

well, product reviews are a little bit different.

Well,

than product endorsements.

I understand.

We got two different, so we have two buckets.

We have two buckets.

Product review, product endorsement.

If you're gonna do a product endorsement, make sure that they're

continuously using your product.

Yes.

So if the endorsement's like, I love this guy.

I love this skin cream.

This is why I use it every day.

Like, look, I don't have any wrinkles.

Like this is what I use on a daily basis.

If that's not true, then that whole endorsement or testimonials.

Is

a line.

Yeah, exactly.

It's, it's false.

Not false advertising.

Deceptive advertising.

Exactly.

Yeah.

I mean the first thing is make sure that they're actually gonna use your product.

Mm-hmm.

And look at what they're kind of gonna be saying about your product.

Number two would be, if you are incentivizing any way, they need

to include a material connection disclosure, and that goes back to the

contract we were just talking about.

You can draft out the material connection disclosures that they need to present

in every single one of their ads.

Whether it's, can you believe I get paid for this or do you believe

they send this to me for free?

Exactly.

Just 'cause I share it with you.

I'm so lucky.

Exactly.

And then I, I guess the third point is you might not, at certain size, you

might not be able to review every single one of these testimonials or endorsements

that gets placed, but you need to have some sort of audit or tracking process

in the back, on the back end of all this.

So whether it's the influencer emails and inbox somewhere that

has a link to all the ads that at least someone at some period of.

Some interval is going on and you know, either doing keyword searches

or something to figure out like what these people are saying.

I mean, there's an obligation on the business to police what the

affiliates, not affiliates, what the influencers are saying on their behalf.

So those are the big, the three main things that I would recommend.

Awesome.

Before we wrap up, any final thoughts on influencer marketing and what's coming?

No, I mean, I think it's a great way to build brand engagement.

It is the most authentic way to do it, and

brand reputation's important and

you know, I think we might disagree or come to, you know.

We would politely disagree on whether or not some of these

disclosures affect conversion.

But I think at the end of the day,

we've actually voided that in this podcast somehow.

I think that the, putting the ads, putting hashtag ad and saying nothing,

I think that will abso like I, I trust you to share with me what you're

using is an influencer that I follow.

Yeah.

I don't follow influencers, but I'm talking about the mindset

of people who sit and watch other people's stuff constantly.

We know what I watch and it's not stuff like this.

Like murder mystery stuff.

But um, I think that when you bury it, and I know you, you're not burying it.

If it's the very top it says hashtag ad, I think it would have very low conversion.

I think it would have a much higher conversion to just

by being extremely upfront.

I am, I. Beyond blessed that this is my life and this is my job, and I get

paid to share this with you all, or can you believe that they send this stuff

to me for free just because of you?

Thank you guys for coming in and watching and buying the products that I recommend.

Because of you, I get to do this.

Right?

So I think that that would be way higher converting than these written disclosures.

Above the fold that you're talking about.

I just think that people just aren't gonna connect with it in the same way.

They connect with, oh my goodness.

Ryan went to this hotel and they gave him this free thing so that he could go

and he told me what to eat and he told me what to drink and he told me where

to fish, and he was like, make sure you thank them for sending me out here

so I could share this with all of you.

There's an authenticity that if I'm a follower, you know, they're cult-like.

Right.

Totally.

So if they're a follower, they're gonna follow you when you lead them.

When you try and like have these disclosures that don't make sense

to them, I just feel like they're looking at it as like, they're

not even discussing it with me.

They're just getting paid and they don't really feel this way.

Does that make sense?

It does.

I just, that's what I think.

I don't know.

I could be wrong.

Probably not though.

Um, so as we wrap up, thank you so much Ryan, for doing this with me.

Um, for those of you that don't know, Ryan and I have created a

spinoff of my podcast, special ops podcast called Marketing on Trial

because we've had so much fun.

He's had so much fun with me.

I've had a lot of fun not paying him to ask him a bunch of questions, a

lot of money, but he is a really good attorney, so I'm super fortunate and

beyond blessed to be doing this with you.

So thank you.

If you want to get.

Notifications every time we post a new episode.

Go ahead and like and subscribe so that you can do so.

Additionally, we have co-written a influencer compliance checklist,

which is in our visionary vault at www.specialopspodcast.com.

You can check out all the tools and courses in there.

We've co-written a few things, and we'll have all the stuff about

influencer compliance and what to look for in your own business.

Thank you, Ryan.

Thanks, Emma.