Kylie Jenner, a celebrity and “Mega-Influencer,” advertising FitTea 28 Day Detox to her millions of followers on Instagram. Image Credit: https://mumbrella.com.au/instagrams-new-ad-option-will-change-the-way-we-see-influencers-568740
By Danielle Gitzen, JHBL Staff Member
Many of us thought quarantine would only last two weeks, a month at most, but here we are, six months later, still going strong. For many Americans, quarantine seems never-ending. People have lost their jobs, and with that, there’s no longer a schedule or routine to follow. Normalcy is out the window. It can be hard to find motivation, and after what seemed like thirty minutes, you’ve been mindlessly scrolling through social media for over two hours. Social media marketing and advertising (or as they call it nowadays, “influencing”) have become a billion-dollar business. From Chloe Ting’s 30-Day Challenge to Teami Detox Teas, social media has been filled with many different diets and workout programs to try, but can we trust them to help us get back into a routine and keep off that quarantine weight?
In 2019 alone, the influencer marketing industry spent around $8 billion, and that number is expected to increase to $15 billion by 2022. Influencers are categorized by their reach and niche. The former, referring to their number of followers, engagement, and authenticity, while the latter refers to the intentionality of target demographics. As many can assume, the more followers an influencer has, the more money they receive per post. Currently, “influencers” who have 1,000 to 10,000 followers, formally known as “Nano-influencers” can earn anywhere from $10-$100 per post. In contrast, “influencers” and celebrities in the “Mega-influencer” category with 1,000,000+ followers can earn $1,000,000 per post. These numbers provide insight into how lucrative influencer marketing has become and why Federal regulation needs to continuously adapt to keep up.
In the early 1990s, the Nutrition Labeling and Education Act (NLEA) was implemented, which provided a new food labeling regulation. The NLEA took effect in 1994, and consumers realized the link between nutrition and their health, changing food labeling policy standards. Specifically, there are three Federal agencies that regulate nutrition advertising and labeling. These agencies are the Food and Drug Administration (“FDA”), the Federal Trade Commission (“FTC”), and the Food Safety and Inspection Service (“FSIS”) of the U.S. Department of Agriculture (“USDA”). The FTC focuses on consumer transparency in food labeling, while the FSIS of the USDA focuses on meat and poultry regulation, and the FDA provides regulation of other foods’ labeling. Because we are focusing on the social media promotion and endorsement of health and diet fads, the primary focus will be on FTC and FDA regulation.
The FTC’s goal is to ensure consumers are not deceived or confused when purchasing a product, focusing specifically on consumer transparency. For example, TeamiTea, LLC, and its owners settled a $15.2 million judgment with the FTC earlier this year, 2020. They came under scrutiny for promoting its teas and skincare products using “deceptive health claims and endorsement by well-known social media influencers who did not adequately disclose that they were being paid to promote its products.” Influencers and celebrities targeted included the likes of Cardi B, Jordin Sparks, and Adrienne Bailon (yes, think Cheetah Girls!). Previously, in 2017, celebrities, athletes, and social media influencers came under scrutiny for not alerting their followers (consumers) that they were being paid to endorse the products in their posts. This raises the question, is the FTC doing all they can to continuously ensure consumer transparency with the ever-changing social media technology?
Furthermore, the FDA regulates food labeling, not consisting of meat and poultry. With the rise of technology, the regulation of online food labeling falls under this Federal agency. Another corporation, Truly Organic Inc., came under fire this year (2020) for advertising their products as “100% organic” and “certified organic” when in fact, neither of the two claims was valid. Truly Organic Inc. was ordered to discontinue “making deceptive claims, including false and/or unsubstantiated claims” regarding claims that their products were organic and/or vegan when they simply were not. Finally, Truly Organic Inc. was ordered to pay $1.76 million for their deceptive labeling. This clearly outlines the issue that under the FDA, a company cannot make claims that are not backed by scientific studies. Additionally, it provides further insight into the FTC’s need to regulate online health and diet advertisements to ensure consumers are not deceived.
So, what does this mean as a consumer? For those of us that have been consistently bombarded with diet and workout fads on our social media feeds throughout quarantine, let’s break down the facts. According to The Centers for Disease Control and Prevention, adults should get at least 150 minutes of moderate-intensity aerobic activity and at least two days a week of muscle-strengthening activity, or 75 minutes of vigorous-intensity activity per week. Additionally, you should avoid a sedentary lifestyle. These guidelines have been linked to “reduc[ing] feelings of anxiety and depression and improves sleep and quality of life.” Additionally, there’s such a thing as exercising too much (thank goodness). Beyond 300 minutes of exercise, likely doesn’t provide further benefit. As an adult, it’s important to listen to your body and ensure you are not overdoing it. As for your diet, the age-old saying, “you are what you eat!” is relatively accurate to this day. Having a good exercise regimen combined with a healthy diet creates a recipe for success.
At the end of the day, don’t expect to gain a “6-pack” from drinking one “Flat Tummy Tea Detox” and don’t expect Chloe Ting’s workout to make you a professional athlete (though my abs are killing me after day 2). What I will say is that it’s a core principle that we have the right to know when we are being advertised to and with the influencer marketing industry continuing to rise, it’s imperative for the FTC, FDA, and USDA to keep up with their regulations. Be cautious, but if those workouts or drinks help you get moving, so be it. And on the final note, just remember, some exercise is better than none!
Danielle Gitzen is a second-year day student at Suffolk University Law School and is interested in combining her passion for sports and business with her Juris Doctor. She was born in the Land of 10,000 lakes, formally known as Minnesota, and uses her “Midwestern Charm” to navigate the fast-paced, bustling city of Boston! In addition to being a staff member for the Journal of Health and Biomedical Law, Danielle is also involved with the Business Law Association as the Social Media Chair and the Sports and Entertainment Law Association as the Vice President of Sports.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Sources:
https://www.businessinsider.com/influencer-marketing-report
https://www.teamiblends.com/collections/best-sellers
https://apnews.com/article/7f38d7fa2982dc53572232c9d2049dca
https://www.bls.gov/news.release/pdf/empsit.pdf
Federal Trade Commission 16 CFR Part 255
https://www.ers.usda.gov/webdocs/publications/41905/51665_ah715c.pdf?v=0
https://www.nia.nih.gov/health/infographics/diet-and-exercise-choices-today-healthier-tomorrow
https://www.allinahealth.org/healthysetgo/move/whats-more-important-exercise-or-diet
https://influencermarketinghub.com/influencer-rates/
https://www.bbc.com/news/business-39650580
https://www.citizen.org/wp-content/uploads/letter-to-ftc-instagram-endorsements.pdf
https://www.the-sun.com/news/1072017/healthy-football-coach-dies-blood-clot-gaming-lockdown/
https://www.cdc.gov/physicalactivity/basics/adults/index.htm