False Influencing

Abstract

Social media influencers and the brands that engage them are bound to comply with the portions of the FTC Act that regulate advertising and endorsement. But many don’t. While the FTC has promulgated guidelines, sent warning letters to repeat offenders, and occasionally brought actions against influencers and brands whose practices run afoul of the guidelines, it tends to apply most of its resources to issues it considers more pressing than regulating influencer marketing claims. Private parties, meanwhile, lack standing to challenge competitors' practices based on violations of the FTC Act. The Lanham Act provides companies with a false advertising cause of action, but so far few have called upon it in an attempt to enjoin false or misleading claims their competitors make via influencer marketing. Can an influencer’s failure to disclose that a post is a paid endorsement — a clear violation of FTC Guidelines — constitute a misleading statement under §43(a)(1)(B)? If an influencer’s testimonial about a product or about her experience with it is untrue, might that falsehood be material to consumers’ purchasing decisions, and thus actionable? This article will explore the potential for private actors to use the Lanham Act to challenge competitors’ “false influencing” — disseminating false or misleading advertising messages via influencer marketing — as a means to increase consistency in how ads are regulated across platforms and types of media.