Practitioner Perspective: Designer Endorsements and the FTC
This article is a written perspective by Michelle Mancino Marsh, Partner of Arent Fox LLP[1] responding to staff member Megan Rzonca’s blog post: Designer Endorsements and the FTC[2]
Does an actress being paid to wear a dress on the red carpet serve as an endorsement in the same way that a social media influencer being paid to wear a dress on their social media account serves as an endorsement?
In the Federal Trade Commission’s (“FTC”) “Endorsement Guides”, an “endorsement” is defined as a statement, depiction, or demonstration that a consumer is likely to believe reflects the opinion of a party other than the advertiser.[3] If we were to consider only the FTC’s definition, it may seem relatively clear that when Octavia Spencer says on the red carpet that her dress makes her feel like “Cinderella at the Ball” she is “endorsing” the designer of her dress in the same way that a social media influencer “endorses” a product when he or she posts a photo of the product on Instagram.
But the fact that the actress on the red carpet and the social media influencer may both be “endorsing” a product should not end the analysis. The FTC only requires a disclosure of the material connection between the endorser and advertiser if consumers would not otherwise expect that connection.[4] And in the case of the red carpet, we must give credit where credit is due: the reasonable consumer is likely aware that actresses and actors do not randomly pick something out of their closet before strutting down the red carpet. Just like Serena Williams wearing Nike or Steph Curry in Under Armour, consumers know that some sort of business relationship exists between the clothing designer and the endorser and are taking that relationship into account when assessing the credibility of the endorsement.[5] That said, there could arise a situation in which a celebrity’s comments on the red carpet about her dress go above and beyond what a reasonable consumer might expect and that could cross the line where a more robust disclosure is necessary. Nevertheless, it’s unlikely that we would start seeing #octavialovesmarchesa scrolling across the screen during the red carpet show. In other words, the nature of the red carpet interviews naturally limits the statements made to responding to that ubiquitous red carpet interview question: Who are you wearing?
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