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On March 6, the Federal Trade Commission (FTC) announced that it had settled claims against an online marketer of tea and skincare products, with a $15 million consent judgment based on total sales of the products. As detailed in the Complaint and proposed Consent Order filed in the U.S. District Court for the Middle District of Florida, the FTC alleged that Teami LLC made false claims about the potential health benefits of its "detox tea," while failing to ensure that its paid endorsers adequately disclosed the commercial nature of their relationships with the brand. The case is an important reminder of the increased scrutiny toward online endorsements in the "influencer" age.
Central to Teami's marketing were paid endorsements by celebrities and other influencers, including Demi Lovato and Kylie Jenner, as well as lesser-known social media mavens. Nearly two years ago, the FTC wrote to Teami, informing it that material connections with its influencers had to be disclosed in a manner that was both clear and conspicuous, with disclosures in Instagram posts appearing above the "more" link. In response, Teami instituted a social media policy advising its influencers of these requirements.
Teami apparently failed to enforce the policy, as illustrated by a video post from Cardi B to her more than 50 million Instagram followers, which failed to mention her connection to Teami above the "more" link. Other Teami influencers made posts without a disclosure in the first two or three lines of text or other readily visible content, such as photos. The only way followers viewing on mobile devices would see the disclosures was if they clicked to see more.
In addition to a count based on deceptive claims about the tea's health properties — including its ingredients' ability to treat cancer and "unclog arteries" — the FTC took issue with Teami's failure to disclose material connections with paid influencers. In a proposed Consent Order, the FTC, Teami and its two principals agreed on terms to resolve the matter, which include a disgorgement of $1 million and a permanent injunction against future violations.
Finally, the FTC took this opportunity to remind brands and social media influencers of their disclosure obligations. Any company that engages staff or third parties to post on social media should adhere to the FTC Endorsement Guides (link below), which include the following:
Social media influencers and others who endorse products in violation of the Endorsement Guides may also be subject to legal liability. See FTC warning letters re: Teami.
For further information, please consult the following resources or any of the contacts shown in the sidebar.
Business Guidance About the Endorsement Guides
Legal extern Adam Weisman, University of New Hampshire School of Law 2020, contributed to this alert.
Mark Romance authored the article, "UNITED STATES: Major League Soccer Denied on Third-Party Use" for INTA Bulletin, the online publication for the International Trademark Association.
Mark Romance authored the article "UNITED STATES: GOD BLESS THE USA Denied," for the INTA Bulletin, the online publication for the International Trademark Association.
Mark Romance authored an article, "U.S. Trademark Trial and Appeal Board Clarifies Rules of Admissibility of Evidence," for the INTA Bulletin Plus, the online publication for the International Trademark Association.
Day Pitney and the Association of Corporate Counsel (ACC) Northeast Chapter co-hosted a virtual roundtable, "Basic Tech and Cyber Competency for In-House Counsel," on September 23.
On September 16, Elizabeth Alquist and Catherine Dugan O'Connor will serve on a panel, moderated by Christopher Droney, for the session, "Anatomy of a Trademark Case," at the Connecticut Bar Association's Connecticut Legal Conference.
Day Pitney Press Release
Day Pitney Press Release
Day Pitney Press Release
Day Pitney Press Release