Can consumers sue influencers for false promotions?

With the rise of social media and influencer marketing, many consumers now rely on influencers' recommendations to make purchasing decisions. However, some influencers have been accused of promoting products or services based on false or misleading claims either intentionally or unintentionally. When these promotions lead to financial loss, harm, or disappointment, consumers may wonder: can they sue influencers for false promotions? The answer depends on several factors, including the nature of the promotion, the legal framework in place, and the specific harm caused by the false claims.

Can Consumers Sue Influencers for False Promotions?

• Influencers and Legal Accountability: Influencers have become major players in the advertising landscape, often promoting products on behalf of brands. When influencers make false or misleading claims, either intentionally or unintentionally, they may be legally accountable under various advertising laws, depending on the country or region. If an influencer promotes a product with unsubstantiated or deceptive claims (e.g., miracle cures for health conditions), and consumers are harmed as a result, the influencer may be liable for those harms.
• Legal Grounds for a Lawsuit: Consumers may have legal grounds to sue influencers under several different legal frameworks:
  • False Advertising: In many countries, including the U.S. (under the FTC Act) and the EU (under the Unfair Commercial Practices Directive), making false or misleading claims in advertising is illegal. If an influencer promotes a product with false or unverified claims, they could be considered in violation of these advertising laws. If a consumer can prove that the influencer’s promotion directly led to financial harm, they may be able to seek compensation through a lawsuit.
  • Breach of Contract: If consumers purchase a product based on an influencer’s false promotion and the product fails to meet the claims made, it could be seen as a breach of contract. In some cases, consumers could sue for a refund, compensation, or other remedies under contract law.
  • Consumer Protection Laws: In many jurisdictions, consumers are protected by laws designed to safeguard against fraudulent practices and deceptive marketing. For example, Section 5 of the Federal Trade Commission Act (FTC Act) in the U.S. prohibits unfair or deceptive acts or practices in or affecting commerce. Consumers may be able to sue influencers under these laws if they were misled by false or deceptive claims.
  • Negligence or Recklessness: If an influencer promotes a product recklessly or without doing proper research into its claims, they may be accused of negligence. For example, endorsing a weight-loss supplement without verifying its safety or efficacy could result in harm to consumers. If negligence is proven, the influencer may be liable for damages.
• Influencer's Role in the Promotion: The extent of the influencer's responsibility can vary. In some cases, the brand or company behind the product is primarily at fault, as they may be the ones providing the false claims or marketing the product in a misleading manner. However, if the influencer knowingly participated in or endorsed the false claims, they could be considered equally liable. For instance, an influencer who promotes a skincare product claiming it can cure acne instantly without providing any scientific evidence or warnings could be seen as misleading consumers. If users purchase the product and experience no results (or adverse reactions), the influencer could be held accountable, especially if they failed to disclose their paid partnership with the brand.
• Proof of Harm or Loss: In order to sue for false promotions, consumers must typically prove that they were harmed or suffered financial loss as a result of the false claims. This could involve demonstrating that the influencer's endorsement led to a purchase decision, and that the product failed to deliver on its promises, resulting in damages (e.g., financial loss, physical harm, or emotional distress).
  • For example, if an influencer endorses a weight-loss supplement with unverified claims and a consumer purchases the product based on that promotion but experiences adverse effects, they may have grounds to sue for personal injury and damages.

Legal Recourse and Actions for Consumers

• Reporting False Promotions to Authorities: Consumers can report false or misleading influencer promotions to regulatory bodies like the Federal Trade Commission (FTC) in the U.S., the Advertising Standards Authority (ASA) in the UK, or European Consumer Centres (ECC) in the EU. These agencies investigate deceptive advertising practices and may take enforcement actions, such as issuing fines or ordering corrective advertising. The FTC in the U.S., for example, has strict rules that require influencers to disclose paid partnerships and prevent deceptive advertising. If an influencer fails to comply with these regulations, the FTC can investigate and take enforcement actions, including fines or lawsuits.
• Class-Action Lawsuits: If many consumers are affected by an influencer’s misleading promotion (such as endorsing a harmful or ineffective product), they may pursue a class-action lawsuit. In a class-action case, a group of affected consumers sues the influencer and/or the company responsible for the promotion collectively. Class-action lawsuits can be an effective way to hold influencers accountable for widespread deceptive practices.
• Seeking Refunds or Compensation: Consumers who believe they were misled by an influencer’s false promotion may also have the right to request a refund or compensation directly from the brand or influencer. This might be especially relevant in cases where the product purchased is defective, ineffective, or harmful, and consumers can show that they were influenced to buy it based on false advertising.
• Civil Litigation Against Influencers: In some cases, consumers may choose to take civil action against an influencer for financial loss, emotional distress, or harm caused by the promotion. This can involve filing a lawsuit for damages based on deceptive marketing practices or breach of consumer protection laws.

Challenges in Suing Influencers for False Promotions

• Proving Knowledge and Intent: One of the main challenges in suing influencers for false promotions is proving that they knowingly made false claims or that their endorsements were deceptive. In many cases, influencers may simply be promoting products they were paid to endorse without investigating their validity or verifying the claims. Proving that the influencer was aware of the false nature of the promotion or acted recklessly can be difficult.
• Disclaimers and Legal Loopholes: Influencers are often required to include disclosures such as #ad or #sponsored to indicate that the promotion is a paid partnership. While this helps with transparency, influencers may argue that they followed the required guidelines and were not intentionally misleading. These disclaimers may act as a defense against claims of deception, but they don’t absolve influencers of responsibility if the product claims themselves were false.
• Liability of Brands vs. Influencers: In many cases, the brand behind the product is the primary responsible party for false or misleading claims, and influencers are seen as marketing partners rather than creators of the claims themselves. In these cases, consumers may need to target the brand for compensation, even if the influencer played a role in promoting the false claims.

Example

Suppose an influencer promotes a miracle skincare cream on Instagram, claiming it can eliminate acne within days. A consumer buys the product based on this claim, only to find that it doesn't work, and their skin worsens.

Steps the consumer should take:

• Document the Claim: Take screenshots or keep records of the influencer’s post, showing the false claims made.
• Contact the Brand: Reach out to the company behind the product to request a refund or compensation for the product that didn’t meet the claims.
• File a Complaint with Authorities: Report the misleading promotion to the FTC, Advertising Standards Authority (ASA), or other regulatory bodies.
• Consider Legal Action: If the financial loss or harm is significant, consider consulting with an attorney to explore the possibility of a lawsuit against the influencer, the brand, or both.