Words Can Hurt You: The Legal Concerns of Content Marketing



Content marketing is more than just publishing online and getting paid for it. If you’re publishing any form of content – whether updates to your social media profiles, blog posts on your company website and more – you need to be aware of the different regulations that govern specific industries.

This is especially true for promoters or site owners involved in the health or medical industries, gambling, financial and related fields, but they aren’t the only ones who need to be aware of and follow these regulations. All marketers, advertisers and website owners need to know what’s at stake, legally, when it comes to content marketing.

Necessary Disclosures on Social Media Content

First of all, the FTC wants it to be obvious if there is any kind of material connection between somebody making content and that company or brand.

For this reason, bloggers, site owners and other endorsers (tacit or explicit) have to include an easy-to-understand disclosure with blog posts, Facebook updates, tweets, Instagram shots, videos, pins on Pinterest and more. Basically, if there is any form of compensation going on, the disclosure must be in the ad itself.

Further, these disclosures have to be clear and presented in “Understandable Language”. In the specific case of social media, the FTC says to use “Sponsored”, “#Ad” or “Ad:” to let people know that either the post itself or the link in the post does contain content that was compensated.

You can get a good idea of what an acceptable Twitter disclosure looks like by reading this post be Christopher Penn on the Shift Communications blog. Specifically, look to his recommendation that content creators always start paid promotions with “Ad:” as the opening. This goes for any type of compensated content, including Promoted Posts and paid spokespersons – even the content shared by your employees on social media could fall under this requirement.

The Federal Trade Commission’s (FTC) Endorsement Guides

To learn more about the FTC’s restrictions, check out the guides produced by the FTC and promoted by the Small Business Administration. Guides exist for different industries, and you can download them for free. They’ll tell you what’s expected, so it’s a good idea to check them out to avoid any kind of legal trouble in the future.

Even if you don’t read through the guides, keep this basic principle in mind: the FTC wants all endorsements to be straightforward and truthful. They must go by the basic truth-in-advertising principle, meaning that endorsers can’t make claims that marketers can’t legally make, and that the endorsement must be the endorser’s truthful opinion.

Legal Requirements of Content Marketing and the Medical Industry

Beyond endorsement disclosures, content marketing initiatives within the medical and healthcare industries must comply with both FDA and HIPAA guidelines, lest publishers risk some big fines. In fact, content pieces that don’t follow the Stark law can cause publishers to lose payments from Medicare billing. If you’re involved in creating this kind of content, it’s critical that you work with professional medical and healthcare marketers who are knowledgeable about the regulations governing these types of marketing.

Further, ads making use of an endorser who got very good results using their product must state clearly what the usual results are. A good example of this would be a weight loss advertisement or advertorial in which the writer claims to have lost a large amount of body fat in two months, or a customer claiming that their face looked 10 years younger in just two weeks. In both cases, medical or healthcare content would need to detail more likely outcomes to remain in compliance.

In other cases, products like sunscreens that advertise a reduced skin cancer risk, filters that remove unhealthy chemicals from air or water and even power on-and-off safety switches, are put under additional scrutiny by the FTC to ensure they actually do what they say. If you operate in one of these sensitive fields, making sure your content meets the necessary requirements is crucial.

Green Advertising

Next up, anyone involved in marketing content for environmentally healthy and bio-degradable products must be able to back up any claims they make with real proof. As with diet supplements, a product must meet the claim all the time; if they don’t, it must be stated under which conditions these types of products should be used.

Marketers of products that promise their hairspray or deodorizer is safe for the ozone, or companies that claim their mufflers remove harmful chemicals from an engine’s exhaust are some examples of the kinds of companies that must be able to prove what they promise a consumer. If they can’t, legal trouble and fines are inevitable.

Financial Products, Gambling and the FTA

Finally, websites and promotions involving financial products or gambling have to clearly state the terms involved. Essentially, these guidelines prevent companies from making promises of likely wins or major earnings on investments without real proof of the terms and conditions of the financial product.

As an example, take the following disclaimer from the Terms and Conditions page on the Casino Room website:

“You acknowledge that gambling is an uncertain activity that may cause monetary losses. The SITE is not responsible for claims for losses or damages of any kind resulting from real money play under any condition. Play at the SITE is at the sole option, discretion and risk of the Player. Player is also responsible for maintaining the secrecy and security of their account passwords and other personal security information. The SITE is not responsible for the unauthorized use of your account with the SITE or any losses that may result, of such unauthorized use.”

This disclaimer clearly states that there’s risk involved in online gambling and avoids making promises the company can’t deliver on. Further sections of the page detail how the company keeps all visitor information private and secures the website against hacking – a further restriction put in place by the FTA.

In the case of more traditional financial institutions, creditors have to abide by the Credit Practices Rule, which states that any financial institution, auto dealer, retailer or credit union must advise consumers about their legal obligations and more. And while these restrictions tend to apply more to institutional lending, anyone producing content in this niche will want to consider carefully whether the content created can be construed as violating the Rule by providing financial advice without advising readers on their obligations.

At the end of the day, if you aren’t about the legal requirements governing content marketing in your industry (if any), it’s better to consult a lawyer and keep yourself out of trouble. An ounce of prevention here truly is worth a pound of cure.

Have you ever run into legal requirements that have influenced your content marketing efforts? If so, share you addressed them by leaving a comment below:



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January 30, 2016

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