The Texas Attorney General is suing an influencer who sold online fitness and nutrition plans.
The lawsuit says she sold the plans “with the promise of personalized nutritional guidance and individualized fitness coaching.”
The price of the plans ranged from $92 for a one-week program, to $300 for a 3-month regimen.
But the AG says “the online nutrition and fitness plans delivered to consumers were not individualized.”
They also alleged she “failed to provide the promised coaching and check-ins, … largely ignored consumer complaints, or offered only partial refunds.”
Instead, customers complained that the check-ins and feedback they received were “generic and non-substantive, e.g., ‘You’re killing it!’”
The lawsuit also alleges that she charged customers a shipping fee, even though the plans were emailed.
The customers joined the influencer’s Facebook group, where they were able to compare plans and, according to the lawsuit, realize that they received the same “individualized” plans despite having different goals and starting metrics.
So why post about this?
It’s an important reminder to pay attention to the claims you make about the products and services you offer.
There’s nothing inherently unlawful about selling off-the-shelf template nutrition or workout plans.
And it may seem obvious that if you call something “personalized,” then you need to tailor it to each person.
But it’s also common for brands and influencers to include a word or two in their ad copy that conveys a certain meaning—intentional or not—that a significant portion of their audience will rely on when making a purchase.
Those one or two words, if they don’t accurately describe the product or service being sold, can make the difference between a successful business and a lawsuit from the government or a class action from customers.
So, it’s a good idea to review all of your ad copy, especially if you are selling a plan or a course, to make sure that you aren’t overpromising or phrasing things in a way that might carry a meaning you didn’t intend.
A music NFT project called Opulous featured Lil Yachty as “collaborating” on their NFT drops.
But he says he never agreed to be part of the project.
So, Yachty is suing Opulous, its music distribution partner, and that partner’s founder individually.
He’s asserting claims in California federal court for trademark infringement, false endorsement, and violations of his publicity rights.
According to the lawsuit, Yachty had intro conversations with the Opulous team who pitched their “music copyright-backed NFTs,” which allow people to buy fractional licenses to various music recordings and earn streaming royalties.
Ultimately, Yachty passed on the invitation.
But Opulous issued a press release and advertising campaign stating it was “kicking things off” with drops “led by world-famous artists including Lil Yachty.”
Opulous also used Yachty’s image in tweets and LinkedIn posts promoting the project.
This is not the first NFT project that I have read about where a musician’s likeness has been used allegedly without the artist’s permission or involvement.
While the context is new—NFTs as we currently know them are still in their relative infancy—the issues presented here are not.
It’s a mistake to think that the NFT or metaverse spaces are “unregulated,” which is something I hear repeated frequently.
IP rights, including publicity rights, exist everywhere.
And Yachty’s allegations present classic, straightforward claims for trademark and publicity rights violations.
While there are many novel legal issues that come with new technologies, it’s important to understand where the risks lie, old and new.
On the heels of a significant enforcement action against an ecommerce retailer over customer reviews, the FTC released two new guidance documents.
You might already know that the FTC has brought lawsuits against brands and marketers for hiding negative reviews, paying for positive reviews, creating fake reviews, failing to disclose incentives, and other deceptive acts.
Here are the bullet points, quoting from the new FTC docs:
For marketers:
• Don’t ask for reviews from people who haven’t used your product or service.
• Don’t ask staff to write reviews of your business unless they disclose that relationship.
• Don’t ask for reviews only from customers you think will leave positive ones.
• Don’t ask family and friends for reviews unless they disclose that relationship.
• If you offer incentives for reviews, don’t condition it on the review being positive.
• If you offer incentives, the incentive needs to be disclosed.
For review platforms and review sites:
• Don’t ask for reviews only from people you think will leave positive ones.
• If you offer incentives for reviews, don’t condition it on the review being positive.
• Don’t discourage or prevent people from leaving negative reviews.
• Have some process in place to verify that reviews are real.
• Don’t edit reviews to make them sound more positive.
• Treat negative and positive reviews equally: publish both; don’t feature some more prominently than others.
• Clearly disclose how you collect and display reviews and determine overall ratings.
When the FTC issues “guidance,” more actions typically follow.
But enforcement in this area isn’t new—some other examples:
-In 2015, the FTC sued AmeriFreight, a car shipment broker, because it showcased online customer reviews without disclosing that the reviewers were given discounts and entries into giveaways.
-In 2019, the FTC sued UrthBox for its practice of providing free products to customers in exchange for positive reviews and not disclosing the relationship.
-In 2020, the FTC obtained a $23.9M judgment against student loan debt relief operator who failed to disclose customers were paid to leave positive BBB reviews.