A lot of attention has been paid recently to the warning letters issued by the Federal Trade Commission to a number of prominent online “influencers.” The letters addressed advertising disclosure requirements under the FTC Endorsement Guides (the “FTC Guidelines”). Essentially, under the FTC Guidelines, social media influencers must be very careful to clearly and conspicuously disclose whether there is a “material” connection between the influencer, as endorser of the product, and the marketer of the product under certain detailed scenarios.
Now the FTC Guidelines, and the restrictions therein, have been cited and incorporated into a Complaint filed by Fast Forward Academy in Fast Forward Academy v. Welker, et. al. Case 6:17-cv-00783-GAP-TBS, in the federal middle district of Florida on May 2, 2017.
According to its Complaint, Plaintiff Fast Forward markets and sells professional testing preparation courses used for accrediting CPA’s and other professionals. Fast Forward claims that Defendants allegedly operated websites where reviews of test preparation products were influenced by affiliate marketing commissions. Fast Forward claims that, after it formally terminated its affiliated marketing arrangements with Defendants, its product reviews changed from positive to negative and its rankings dropped. Fast Forward’s complaint seeks redress for alleged violations of Section 43(a) of the federal Lanham Act, defamation and unfair and deceptive trade practices under Florida state law.
Of particular note, Fast Forward contends that Defendants’ affiliate disclosures on its websites do not comply with the clear and conspicuous display requirements mandated under the FTC Guidelines.
The attempted yoking of the FTC Guidelines to private causes of action by Fast Forward would seem to warrant close monitoring of this case by the online community as litigation progresses.