A Guide to Avoiding Pitfalls and Reaping Benefits of Influencers During COVID-19

Allison Fitzpatrick, Partner, and Paavana Kumar, Associate, Davis & Gilbert LLP

Many marketers are hesitant to engage influencers during the pandemic owing to a fear of seeming out of touch with the virus’s grim reality.

Indeed, marketers could face significant PR backlash for running influencer campaigns that promote luxury items to consumers who need basic necessities. In addition, campaigns could subject marketers to legal liability if influencers go off-script and make unsubstantiated claims regarding health benefits of products to treat the novel coronavirus.

Despite these risks, influencer marketing can reap significant benefits during COVID-19. Influencers are uniquely poised to capture consumer attention, particularly as social media becomes many consumers’ primary communications outlet, replacing friends, co-workers and even family.

Faced with a largely homebound fan-base, marketers can harness the power of influencers to connect with consumers in a genuine and authentic way, provided campaigns are structured appropriately.

Below is a list for structuring influencer marketing campaigns during COVID-19.

Build Goodwill

While marketers hire influencers to tout the benefits of their products, this is not the messaging most consumers want to hear now. Instead, they want to hear about positive steps that brands are taking to help those in need during these tumultuous times.

Influencer campaigns should shift their messaging from product benefits to an organization’s charitable endeavors, such as a recent donation to a COVID-19 non-profit organization, or efforts to support small businesses.

Influencers should encourage their followers to promote the same worthy causes, thereby promoting positive messaging that ultimately builds consumer goodwill.

Provide Help

Consumers are becoming increasingly bored and isolated as they run out of stay-at-home activities. Indeed, there are only so many times a person can watch Tiger King. Influencers could provide activities that fill up the monotony of consumers’ days.

Influencers should offer projects and other at-home activities that do not require substantial purchases. Food influencers can promote recipes that are easy to make with ingredients that most people likely have on hand, while travel influencers can take followers on a virtual tour of some of their favorite places. Mommy bloggers can share helpful homeschooling tips.

Take Advantage of Technology

Consumers typically want to go to the same restaurants, bars and hotels as the influencers that they follow on social media. For many, frequenting restaurants, bars or hotels at this time is not possible.

Instead, influencers can encourage their followers to meet on Zoom and similar platforms, where influencers could eat, drink or discuss a new product.

Influencers can also use video-conferencing software to connect consumers with unique first-to-respond-type experiences. For example, they can offer virtual cooking classes with themselves or other celebrity partners. Influencer live streams or virtual meet and greets also may go over well with fans who are feeling increasingly isolated as a result of COVID-19. See, for example, Lin-Manuel Miranda’s Zoom performance of “Hamilton” to surprise a 9-year-old fan.

Be Authentic

People follow influencers with whom they have a connection. Influencers need to be themselves in order to make that connection. During these challenging times, brands should allow -- and even encourage -- influencers to post more ‘authentic’ content that does not specifically plug the marketer but is more personal.

One such example might be talking about a relative or friend who is sick. However, influencers should generally avoid posting about receiving a test for COVID-19, due to the perception that celebrities are getting tested more easily than average people.

Don’t Neglect Humor

The goal is to strike the right balance between grasping the gravity of the situation and consumers’ need to find levity in the everyday. Marketers should brainstorm ways for influencers to be humorous without downplaying the situation or making inappropriate jokes that could backfire (e.g., the K-pop star’s April Fools Instagram post falsely claiming that he had COVID-19).

Structure Promotions Appropriately

Sweepstakes and promotions are a powerful tool for marketers to connect with customers, particularly now. Influencers can be a marketer’s best mouthpiece for generating interest in promotions, provided those efforts are structured appropriately to respond to the pandemic.

For example, instead of awarding trips, influencers could award gift cards for restaurants and retailers that the economic situation has hit hard. In addition, influencers could promote contests that award grocery prizes to consumers who are in most need of them. An influencer could help marketers select and notify winners, thereby leading to greater one-on-one communications between influencers and the marketer’s customer-base.

Grant Approvals Judiciously

Like all marketing, it is critical that influencer campaigns avoid appearing tone-deaf. An example is upbeat posts in the days following the George Floyd killing.

It is also imperative that influencers not make unsupportable claims, especially as they relate to health and wellness.

Marketers need to review and approve influencer content before it is posted to ensure that it does not result in a PR backlash. For example, if an influencer video showcases physical contact, improper handling of masks or lack of social distancing.

Marketers should review content for setting and tone as well. As an example, consumers may not connect with influencers who complain about isolation from their mansion. Marketers also need to ensure influencers are not overpromising on products’ benefits. Such claims could lead to regulatory action, particularly if influencers are making unproven claims about treating COVID-19.

Don’t Forget Clearance Issues

If influencers are self-producing content at home, marketers should give them clear guidelines with respect to intellectual property rights, such as third-party music, videos, photos and GIFs. For example, if an influencer posts about self-isolating at home with her movies and books, and shows actual movie footage, actors and book covers in her content, the post could expose the marketer to legal liability. A good rule of thumb, influencers should avoid mentions of Disney, “Star Wars,” the Kardashians or the Super Bowl–unless you have explicit permission.

Update Influencer Contracts

World events are changing so quickly that no one knows what the next day will hold. Accordingly, marketers need to have maximum flexibility administering and possibly postponing or terminating influencer campaigns. Marketers should update influencer contracts to ensure they have the ability to postpone and terminate campaigns at any stage – even if they must pay the influencer for services performed to date.

Influencer contracts should include alternate campaign dates in case efforts cannot launch on time. Consider: (i) reducing travel requirements or including a contingency clause where the influencer can render services from home; and (ii) adding pandemic situations or similar public health crises to force majeure clauses (but building in recourse if talent is not prevented from attending a future shoot later in the year but is simply nervous about doing so).

Ensure Compliance with FTC

In today’s chaos, remember the FTC continues to focus on deceptive influencer marketing practices–perhaps even more so given the proliferation of online influencer campaigns. Remember to ensure influencers understand their obligations under the FTC’s Endorsement Guides, including disclosures (e.g., #ad, #sponsored). Monitor and terminate influencers who fail to comply. As noted, marketers are responsible for influencers’ unsubstantiated claims.

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