Advertisers, facing numerous challenges stemming from the COVID-19 pandemic, should heed these tips to ensure their advertising does not create more challenges than it solves.

Consider COVID-19 claims carefully

More than ever, advertisers must scrutinize express and implied claims to make sure that they are truthful, not misleading and are adequately substantiated. The Federal Trade Commission has issued dozens of warnings, including to the provider of “sound healing” services who claimed it had “developed a set or programs with frequencies that target Coronavirus/SARS viral infections” and a seller of a facial cleansing brush who claimed it could “fight off corona.” 

The FTC will closely scrutinize claims that any product can cure, treat, or prevent COVID-19.  Brands should also carefully consider any claims of improved or strengthened immunity and claims that cleaning products can kill COVID-19.

Be smart about user-generated content

Shelter-in-place and social distancing orders have impacted brands’ abilities to produce new content. It is difficult to shoot a new campaign when groups of people cannot congregate or are not “essential.”  

User-generated content can be valuable, but best practices still apply during a pandemic. It is critical to obtain rights to all content used, particularly because COVID-19 has not put a damper on those asserting infringement claims. In fact, since the World Health Organization declared COVID-19 a global pandemic, more than 100 copyright infringement lawsuits have been filed in the U.S. alone.  

Because customers and employees are unlikely to consider the legalities of the content they provide and lack the financial resources to pay a rights holder, brands should consider additional diligence to determine ownership—for example, whether the content contains certain unique “prompt” elements and thus must have been created by that person in response to the brand’s request.  

Using unlicensed or improperly licensed content, including photographs, music, clips, and other creative works can result in infringement claims. A slip-up in this area can be costly, not just in terms of monetary penalties, but in diverted attention and negative PR.

Keep a closer eye on your influencers

Brands should keep a close eye on influencers to ensure that they are not engaging in activities that create regulatory issues or tarnish the brand.  Particularly for offerings susceptible to COVID-19-related health or wellness claims, brands should consider providing influencers with pre-
approved ad copy or requiring pre-publication review. This review process should include all hashtags the influencer will use, since even hashtags can create an implied claim. 

Charity begins at the legal department

In the wake of the serious economic hardships caused by the pandemic, many brands are donating to charity. Many of these charitable endeavors are in the form of a “commercial co-ventures” where the brand combines the promotion of its for-profit endeavor with a charitable donation. Commercial co-ventures are regulated on a state level, and state definitions vary, but in most cases the brand donates a portion of sales to a specific charity.  

Many states have registration requirements for both the business donating and the charity.  Some states have bond requirements and some have requirements regarding the content of advertisements and disclosures. To avoid false advertising claims, brands should avoid ambiguity as to the time period for the charitable promotion and whether there is a limit to the amount donated.

Social distance from new social until you talk to legal 

More than 80 percent of consumers want brands to connect people, help them stay emotionally close, facilitate a sense of community and issue public statements expressing empathy and support for those most impacted by the pandemic.

Brands have launched a variety of creative campaigns to meet these objectives, especially on social platforms where cost is generally lower and reach seems to be at an all-time high. For example, Steak-umm, everyone’s favorite frozen meat sheet peddler, ran a meta non-campaign encouraging Twitter users to rely on science-based evidence and reject anecdotal information about coronavirus. Other brands, like Coca-Cola, have turned over their social media platforms to charitable organizations, including Feeding America, to help amplify the reach of those entities.  

As brands look for creative and low-cost ways to leverage social to both advertise and bring people together, keep in mind at least these three legal standards:

If employees are posting about their employer or its goods/services, their employment status must be disclosed.  “#Employee” usually is not a sufficient disclosure, so employees should be provided with guidance on proper disclosure language. If the brand is encouraging its employees to post, best practice is to consider the employees like influencers.

Using testimonials and sharing social media posts by others, does not allow a brand to abdicate its substantiation obligation to a third party. If the brand cannot say something itself, a testimonial or a re-Tweet cannot say it on the brand’s behalf.   

Testimonials that claim a specific result are taken to mean that the claimed result is “typical,” meaning the brand must be able to substantiate that claim or clearly and conspicuously disclose the typical result. Vet testimonials, and do not use those touting exaggerated results.