ADventures in Law

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The National Advertising Division (NAD) has focused a good deal of its monitoring enforcement this year on cosmetics cases and influencer cases, including lots involving the use of beauty influencers. (We blogged about some <a href="https://www.adventures-in-law.com/blogs/nad-keeps-it-real-recommends-modification-of-reality-tv-ambassadors-posts-to-clearly-disclose-material-connection-to-clothing-retailer-ad/" target="_blank" rel="noreferrer noopener">here</a>, <a href="https://www.adventures-in-law.com/blogs/when-ad-just-wont-cut-it/" target="_blank" rel="noreferrer noopener">here</a> and <a href="https://www.adventures-in-law.com/blogs/dont-skimp-on-disclosures/" target="_blank" rel="noreferrer noopener">here</a>.) Maybe this focus is catching on, as there have been more cosmetics competitor challenges recently than we have seen in some time, including one <a href="https://bbbprograms.org/media/newsroom/decisions/huda-beauty" target="_blank" rel="noreferrer noopener">filed by Charlotte Tilbury against Huda Beauty</a>. Let me start by saying Charlotte Tilbury’s <a href="https://www.sephora.com/product/charlotte-tilbury-mini-pillow-talk-lip-duo-P458268?country_switch=us&amp;lang=en&amp;skuId=2801371&amp;om_mmc=ppc-GG_17791296877___2801371__9008162_c&amp;country_switch=us&amp;lang=en&amp;gad_source=1&amp;gad_campaignid=17798721731&amp;gbraid=0AAAAADnIXb3gXZkj5Z-6JMjFLFlPVCJOn&amp;gclid=EAIaIQobChMI56WWm_nNjQMVSCezAB30UQ6GEAQYAyABEgIKlPD_BwE&amp;gclsrc=aw.ds" target="_blank" rel="noreferrer noopener">pillow talk lip liner and lipstick kit</a> is iconic and <a href="https://www.sephora.com/product/fauxfilter-luminous-matte-buildable-coverage-crease-proof-concealer-P500309?country_switch=us&amp;lang=en&amp;skuId=2577625&amp;om_mmc=ppc-GG_17791296877___2577625__9008162_c&amp;country_switch=us&amp;lang=en&amp;gad_source=1&amp;gad_campaignid=17798721731&amp;gbraid=0AAAAADnIXb3gXZkj5Z-6JMjFLFlPVCJOn&amp;gclid=EAIaIQobChMIk8rptfnNjQMV119HAR2XQi1NEAQYAiABEgIm-vD_BwE&amp;gclsrc=aw.ds" target="_blank" rel="noreferrer noopener">Huda Beauty has concealers</a> in an amazing range of colors. And nope, neither has paid me a dime or sent me free product for my endorsement. (But I am certainly open to a new career as an aging beauty ambassador. ...)

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This case was about a post from a beauty influencer, Aleksandra Sosfa, who compared the Charlotte Tilbury and Huda makeup-setting sprays on her TikTok, finding the Huda spray was longer-lasting. Huda had no contract with Ms. Sosfa but did regularly provide her with free products. Huda reposted her video on its own page but took this down before the challenge. Huda also commented on the post, thanking her for the review and saying, “We had to take the video down because Charlotte made us ☹.” This part of the comment was also later removed.

In the challenge, there was no substantiation review, so presumably Huda defended the challenge by asserting it had no obligation to attempt to take down the post when it has no direct relationship with Ms. Sosfa. NAD disagreed, finding that “when an advertiser and an influencer share a longstanding, albeit informal, relationship (including the provision of free product) and the advertiser has been put on notice that the influencer’s claims may be unsupported, certain additional remedial action may be required on the part of the Advertiser.” What action? “Here, the Advertiser clearly has the means to directly communicate with Ms. Sosfa, having regularly sent her free samples. Moreover, Ms. Sosfa has regularly posted about the Advertiser’s products using those very same free samples. Under these circumstances, even if there is no formal arrangement between the parties, the Advertiser can be expected to communicate with Ms. Sosfa regarding claims made in her posts about Huda and its competitors.” It is not clear how far NAD expected Huda to go – whether a simple polite request to remove the post would do or if Huda would be expected to threaten loss of future freebies if corrective action was not taken. But this case certainly follows the trend we are seeing of NAD being far more exacting regarding disclosures and other obligations of advertisers to police their influencers. This case tells us that, at least in NAD’s view, this obligation may extend beyond just influencers where there is a formal contractual relationship.

NAD Provides More Guidance on Obligations with Influencers Who Are Gifted Free Product