Volume 109

False Influencing

by Alexandra J. Roberts

Companies regularly call upon Section 43(a)(1)(B) to challenge the veracity of advertising claims made in traditional media. This Article advocates for private actors to use the Lanham Act to challenge competitors’ false influencing as a means to enjoin unfair competition. Although several prongs of the false advertising cause of action may pose challenges when applied to influencer marketing, Section 43(a)(1)(B) case law does not preclude successful causes of action based on influencer misrepresentations. Judges should construe the statute capaciously to better protect consumers, promote fair competition, and increase consistency in how ads are regulated across platforms and types of media.

The Article proceeds as follows: Section I explains why influencer marketing works and whom false influencing harms. Section II provides an overview of federal false advertising law under the Lanham Act and applies it to several types of misleading representations influencers might make, including false verbal and visual statements about products, false testimonials, and nondisclosure of material benefit. Section III argues that brands bear responsibility for the claims influencers make at their direction and the harm those claims inflict. It also explores some possible reasons why private companies rarely seek to curb competitors’ misleading influencer practices using Section 43(a)(1)(B).

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