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images: TINA
images: TINA

After initially filing a formal complaint with the Federal Trade Commission (“FTC”) in August 2016, which focused exclusively on the Kardashian/Jenners’ consistent failure to observe federal labeling requirements in connection with paid-for social media posts, Truth in Advertising Inc. (“TINA”) has yet again called foul on America’s most famous reality television family, alerting the Kardashian/Jenners’ legal counsel and FTC.

After the FTC – the government agency that that is tasked with promoting consumer protection, and eliminating and preventing anticompetitive business practices – failed to formally act on its first complaint, TINA released a new report detailing upwards of 200 posts by the Kardashian and the Jenner sisters that flout the FTC’s guidelines.

The Latest Report

In its latest report, TINA – a nonprofit organization “dedicated to empowering consumers to protect themselves against false and deceptive marketing” – states: “Last year’s complaint did prompt the women to fix about 45 percent of the posts in TINA’s initial sampling by either deleting the post or modifying it to include #ad at the beginning of the caption. But another 40 percent of the more than 100 Instagram posts that TINA originally collected remain unchanged. The remaining 15 percent now contain insufficient disclosures.”

For instance, in a number of posts, which have appeared on the Facebook, Snapchat, and Instagram accounts of the Kardashian/Jenners, the sisters have promoted no less than 50 companies by way of their social media posts, all of which have contained vague ad language that the FTC has specifically said is, in fact, not valid, such as #sp (i.e. sponsored) or KJ4EL (Kendall Jenner for Estée Lauder).

The brands at issue, per TINA: Adidas, Alexander Wang, Ashish UK, Athletic Propulsion Labs (APL), Atkins Nutritionals, Inc., Balmain, Beats by Dre, Belvedere Vodka, Ben Taverniti Unravel, Bumble, Calvin Klein, Chaviv Hair, Chopard, Christofle, Coach, Inc., Cosmesurge, Daniel Wellington, Diff Eyewear, Dr. Jason Diamond, Estée Lauder, Inc., Express, Smile Atlanta, FabFitFun, Fashion Nova, Fit Tea, Flat Tummy Tea, Givenchy, Good American, HiSmile, i.am+ BUTTONS, Iam Jennifer Le Inc., Ippolita, JetLux, Kashmere Kollections, Lokai, Lumee, Lyft, Manuka Doctor, 9MVMT Watches, P.E Nation, Puma, Pretty Little Thing, Protein World, Shopify, Quay Australia, Sorella Boutique, Sugar Bear Hair, Star Lash Extensions, Tracie Martyn, Waist Gang Society, and Zena Foster. 

According to TINA, in cases when the Kardashian/Jenners have included disclosures, they have done os “belatedly … waiting hours or even days to reveal the true identity of the post,” likely in an attempt to deceive their followers.

To date, the famous family “appears to have escaped liability,” as they were not specifically named in either of the two batches of letters that the FTC sent to infuencers over the past year. While one Instagram post of Kourntney Kardashian’s was cited in the first batch of warning letters from the FTC, the recipient of the letter was Popeyes’ CEO – Kardashian was pictured eating the company’s fried chicken – and not Kardashian, herself.

“The Kardashian/Jenner sisters are masterful marketers who are making millions of dollars from companies willing to turn a blind eye to the women’s misleading and deceptive social media marketing practices,” says TINA’s Executive Director Bonnie Patten. “It’s time the Kardashians were held accountable for their misdeeds.”

TINA report notes that its “latest findings across the three social media platforms (Facebook, Instagram, Snapchat) show that the Kardashian/Jenner women are well aware of the need to reveal their relationships with brands, they just choose not to.”

Finally, TINA states that it has alerted the Kardashian/Jenner family’s legal counsel and the brands associated with the posts, as well as the FTC to this latest batch of “deceptive social media posts.”

The FTC’s Failure to Act

As we first noted in 2015, the FTC has failed to act in connection with what appears to be truly rampant and widespread FTC violations by the Kardashian/Jenner family, as reported both by TINA and also by a consortium of other non-profits led by Public Citizen.

The latter organization filed a formal complaint with the FTC in November 2016, calling attention to undisclosed sponsored posts by the Kardashian/Jenners, A$AP Rocky, David and Victoria Beckham; actresses Anne Hathaway, Blake Lively, Ashley Benz, Shay Mitchell, and Lucy Hale; models Bella and Gigi Hadid, Irina Shayk, Emily Ratajkowski, Naomi Campbell, Chrissy Teigen, and Heidi Klum; Scott Disick, Pharrell, Steph Curry, Zlatan Ibrahimovic, Drake, One Direction members Louis Tomlinson and Niall Horan; and Jennifer Lopez, among others.

While the FTC sent letters to a number of these individuals, the Kardashian/Jenners were not on the receiving end of letters, and the FTC has refused to comment on why that is the case.

In its role, the FTC issues guidelines (which are legally binding) that govern “Endorsements and Testimonials in Advertising,” among other things. According to the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising both advertisers and endorsers must disclose material connections (think: payments or free products in exchange for representation of the brand) that they share.

The Guidelines also make it clear that celebrities have a duty to disclose their relationships with advertisers when making endorsements outside the context of traditional ad campaigns. If these Guidelines are not met, the FTC may file suit in accordance with Section 5 of the Federal Trade Commission Act (15 USC s. 45), which prohibits ”unfair or deceptive acts or practices in or affecting commerce.”

Hardly a novel requirement, the FTC has long required advertisers and endorsers to disclose their material connections so consumers can be made aware. Thus, when a celebrity has been paid to endorse a product or service and they fail to disclose that fact, both the advertiser and endorser may be liable. In order to avoid violating the Guidelines, the FTC suggests using “#Ad”, “Ad:” or “Sponsored” in tweets or Instagram photos to indicate that a post or link within a post includes compensated content, and placing clear disclosures near the beginning of blog posts or videos, in this case, as well.

“Consumers are being bamboozled by the digital scam known as influencer marketing. Products are being pitched using deceptive tactics, tricking a consumer into believing they are receiving legitimate advice or recommendations online,” Jeff Chester, executive director of the Center for Digital Democracy, told TFL. “The FTC needs to crack down on these 21st Century scammers, and ensure that the public is treated fairly by digital advertisers.”

Josh Golin, executive director of the Campaign for a Commercial-Free Childhood, stated: “There is abundant evidence that children and teens are particularly vulnerable to advertising masquerading as ‘content.’ The longer the FTC lags on this issue, the more children and teens are subject to this form of unfair and deceptive advertising.”

As for whether the FTC will actually pursue formal action against the Kardashian/Jenners this time around is unclear. The agency does not comment on whether it intends to initiate investigations nor does it speak to pending matters/investigations. 

L2’s Study

TINA’s report coincides closely with a report released by New Yokr-based business intelligence firm, L2 Digital, which, in monitoring more than 5,000 different influencers on Instagram between April 2016 and June 2017, found that brands are not leveraging the full potential of their partners and many may be too focused on influencers with the biggest audiences.

According to L2, “While 70 percent of brands work with influencers, 90 percent of brands fail to feature influencer content on their own account, missing an opportunity to incorporate influencers more actively in their content strategy. Many brands have also failed to encourage influencers to post branded content on their own channels, which could allow them to capitalize more fully on the highly engaged communities of their partners.”

Its report goes on to state, “While mega-influencers can have follower counts in the millions, brands can still generate quality engagement — along with an increased perception of authenticity — by partnering with smaller influencers, whose image reinforces specific brand values.”