If you are a health provider or wellness professional, you may wonder whether and how you can use social media influencers and other experts who might be willing to give testimonials about your wellness services or products. What are the legal guidelines you should follow when engaging with influencers?
Social media posts should be treated the same as other advertising or health claims. In other words, they information should be truthful and not misleading, and any claims regarding how your service or product improves health should be supported by competent and reliable scientific evidence.
The Federal Trade Commission (FTC) addresses claims based on testimonials and endorsements from influencers. See FTC, Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 CFR Part 255.1). FTC guidance about testimonials and endorsements is particularly important if you have paid partnerships that result in testimonials and endorsements of the Company’s products on social media sites. In general,[1] endorsements must always reflect the honest opinions, findings, beliefs, or experience of the endorser. Furthermore, they may not contain any representations which would be deceptive, or could not be substantiated if made directly by the advertiser.
The FTC has different rules for consumer endorsements, and expert endorsements.
For consumer endorsements, among other things:[2]
- The advertiser must possess and rely upon adequate substantiation, including, when appropriate, competent and reliable scientific evidence, to support such claims made through endorsements in the same manner the advertiser would be required to do if it had made the representation directly.
- The endorser’s experience should be representative of what consumers will generally achieve with the advertised product or service in actual, albeit variable, conditions of use
For expert endorsements, among other things:[3]
- The endorser’s qualifications must in fact give him/her the expertise that he/she is represented as possessing with respect to the endorsement.
- The “endorsement must be supported by an actual exercise of his/her expertise in evaluating product features or characteristics with respect to which he/she is expert and which are both relevant to an ordinary consumer’s use of or experience with the product and also are available to the ordinary consumer. This evaluation must have included an examination or testing of the product at least as extensive as someone with the same degree of expertise would normally need to conduct in order to support the conclusions presented in the endorsement.”
Where the endorser has a financial interest in the advertised product, that could materially affect the weight or credibility of the endorsement, this should be disclosed.[4] According to the FTC’s Endorsement Guides, if the endorser has been paid or given something of value to tout the product, that connection should be disclosed.[5]
The disclosure of the financial relationship does not need to be complicated and does not necessarily need to specify the amount paid.[6] A sentence such as “Company X gave me [name of product], and I think it’s great” is sufficient.
Disclaimers are a strategy that, while not a magic bullet, may reduce legal risk. Social media disclaimers can function similar to those on a company’s website Terms and Conditions.[7] Among other things, social media disclaimers, like website terms of use, can help limit liability, state that the information provided does not constitute medical advice, set a minimum age for users of the site, and prohibit certain conduct or language on the site.
State and Private Causes of Action
The FTC is not the only agency paying attention to misleading online endorsements. Among other enforcement agencies, state Attorney Generals may also bring enforcement actions for deceptive online testimonials and reviews.
For example, the New York Attorney General recently settled several cases for alleged deceptive online advertising. In one case, Machinima Inc., an online YouTube channel for gamers, paid “influencers” to post videos endorsing Microsoft’s Xbox One console and a small handful of games. One of the endorsers was paid $30,000 for their videos, but the compensation was not disclosed in the reviews. The New York Attorney General alleged that such conduct violated New York’s Executive Law § 63(12) and General Business Law §§ 349 and 350 which prohibit misrepresentation and deceptive acts or practices in the conduct of any business.[8]
In addition to state actions, individual consumers may also bring lawsuits for online conduct. While social media offenses are a relatively new area for consumer complaints, courts have applied other legal claims to address these new harms.
For example, courts have recognized defamation, misappropriation of identity, cyberbullying, cyberharassment and revenge pornography as harms that occur on social media.[9] Defamation on social media occurs when users post libel or slander, negligently or with actual malice, that damages another individual’s reputation.[10] Misappropriation of identity occurs either when users create false profiles, claiming to be another individual, or when users hack into existing profiles.[11] Cyberbulling and cyberharassment are claims that involve the repetitive abuse of another online.[12]
And revenge pornography is the act of posting sexually explicit photos, videos or other material of an individual onto social media without his or her permission, even if the material was originally captured with the individual’s consent.[13]
If you have a website or social media platform for your wellness business, you could be exposed to such individual claims through other people posting on your sites, including influencers and comments posted in response to influencers.
As a result, you will want to do what you can to prevent defamatory and other inappropriate conduct on your website and social media platforms. Monitoring your various sites as well as creating solid disclaimers are likely to help reduce risk in these areas. We here at Wellness Law, LLC can help you craft appropriate disclaimers and language as you build your wellness business. Contact us today for a free 15 minute consultation.
[1] 16 CFR §255.1.
[2] Id., §255.2.
[3] Id., §255.3. See also 16 CFR §255.4 (endorsements by organizations).
[4] Id., §255.5.
[5] The FTC’s Endorsement Guides: What People are Asking, p. 1 (September 2017).
[6] Id. at 8.
[7] We did not see a Terms and Conditions link on www.legendairymilk.com.
[8] See A.G. Schneiderman Announces Settlement with Machinima and Three Other Companies for False Endorsement.
[9] Nicole Pelletier, The Emoji that Cost $20,000: Triggering liability for Defamation on Social Media, Washington Univ. J. of Law & Policy, Vol. 52, at 231-32 (2106), available at
[10] Id. at 232, n. 32.
[11] Id. at 232, n. 33.
[12] Id. at 232, n. 35 and 36.
[13] Id. at 233, n. 37.