Influencers should be aware of the legal risks and best practices associated with promoting products in the health and wellness space. As brands increase their influencer marketing spend during COVID-19, regulators and law enforcement agencies, including the FTC and FDA, have also ramped up monitoring and enforcement of unlawful claims related to consumer health and safety.

In March, the FTC announced a settlement with Teami, a marketer of teas and skincare products, that included a $15.2 million judgment related to the content of Teami’s influencer campaigns.  Teami’s influencer posts included unsupported claims about the products’ effects on a variety of health issues, including weight loss, cancer, migraines, and colds. Teami’s influencers also failed to properly disclose their connections to the brand.

Andrew Smith, Director of the FTC’s Bureau of Consumer Protection issued a press release in connection with the settlement, stating that “companies need to back up health claims with credible science and ensure influencers prominently disclose that they’re getting paid to promote a product.”

During COVID-19, both the FTC and the FDA have taken action against companies who claimed that their products treat or prevent COVID-19. In the agencies’ warning letters and press statements, the FTC and FDA reiterated their commitment to holding accountable any businesses that take advantage of consumer fear during this health crisis.  Against this backdrop, influencers should be especially mindful of the content they post and should ensure that they are not exposing themselves and the brands they work with to liability from regulators or private plaintiffs.

An exhaustive discussion of legal issues related to FTC and FDA compliance is beyond the scope of this article, and anyone with questions should seek the advice of an attorney. Highlighted here are just a few of the issues that influencers would be wise to keep in mind.

Endorsements Are Treated as Claims Made by the Brand, Not Just the Influencer

The FTC Act requires that all claims that brands make must be truthful, not misleading, and substantiated. In the context of food and supplement safety claims, the FTC typically requires substantiation in the form of competent and reliable scientific evidence. That goes not just for claims that a brand makes directly, but also any claims made by influencers as part of the brand’s campaigns.  

Therefore, everything that an influencer says about a brand as part of a campaign, whether in a feed post, story, tweet, video, or live, must also be truthful, not misleading, and substantiated.  Otherwise, both the influencer and the brand are potentially liable for violating the law.  With these rules in mind, here are some tips for endorsing health and wellness brands during COVID-19:

  1. Actually use the product you’re endorsing. Because endorsements must be truthful, they need to reflect your actual opinion and experience with the product you’re discussing. For example, if you say, “I love how these vitamins make me feel,” but you haven’t actually tried them, then your endorsement is not truthful.
     
  2. Stick to the script. If the brand or agency you’re working with gives you suggested language to use when discussing the product (e.g., “these gummies are loaded with antioxidants”), it’s best to avoid adding too much of your own personal experience to the mix (e.g. “I lost 10lb in two days with these gummies”). That’s because the brand will be obligated to substantiate any claims that you make and may need to disclose qualifying information. The brand might not be equipped to do that, especially if your results don’t reflect the average user experience. 
     
  3. Avoid saying that a supplement can prevent, treat, diagnose, or cure any disease or medical condition. These are called drug claims, and they can only be made about FDA-approved drugs. Brands and influencers cannot make drug claims about supplements. So, for example, saying “boost your antiviral protection with this immunity chewable” would be an unlawful drug claim, because you are saying that the chewable can prevent viral disease. 
     
  4. Always make sure you disclose your relationship with the brand. Influencers need to clearly and conspicuously disclose any material connections with the brands they endorse. Compensation is one kind of material connection. So if you receive anything of value from a brand in exchange for posting content (e.g., cash, discounts, free product, sweepstakes entries, VIP access, etc.), then the FTC requires that you disclose your relationship. Although “#ad” is a common disclosure, there are other ways to disclose, and you may need to adjust your disclosure based on the platform you are using and the format of your content. For example, videos may need audio disclosures.
     
  5. When in doubt, check with the brand and/or your attorney. In addition to the FTC and FDA requirements, you probably have a written influencer agreement with the brand or agency you’re working with on the campaign, so you want to make sure you follow the terms of that agreement, too. If you are ever unsure about whether your content is compliant, check with your attorney and the brand or agency you work with. It’s better to be safe, especially with the increased regulatory scrutiny during COVID-19.  

Robert Freund is an experienced advertising litigator, focusing on social media marketing and compliance. He is also the founder and CEO of InfluencersIQ, an influencer compliance training and certification program.