![Joan Lefkow Blue Ice Vodka](https://cdn.statically.io/img/www.sportico.com/wp-content/uploads/2024/07/GettyImages-52909147-e1719856773727.jpg?w=1280&h=720&crop=1)
Social media influencers can violate the law by failing to disclose a paid relationship with a brand, a federal judge ruled last week when partially denying a motion to dismiss. The ruling serves as a warning to athletes who use NIL to boost products and services without acknowledging the presence of a contractual relationship.
U.S. District Judge Joan Lefkow advanced most of a lawsuit brought by two dissatisfied consumers of Blue Ice Vodka. Mario Sava and Alin Pop accuse the vodka’s maker, 21st Century Spirits, and 10 influencers of violating the Federal Trade Commission Act (FTC Act), Florida and Illinois and California consumer protection statutes. The defendants are also accused of unjust enrichment, negligent misrepresentation and breaching express warranties.
Sava and Pop, who seek for their lawsuit to become a nationwide class action and demand damages of “at least $11 per bottle,” argue that marketing for Blue Ice is rife with falsehoods, exaggerations and distortions intended to mislead consumers.
Among other grievances, Sava and Pop contend Blue Ice contains more calories than advertised, it doesn’t help with personal fitness or weight management and isn’t “handcrafted” but instead “industrially manufactured” by machines. To illustrate allegedly problematic influencer behavior, one influencer apparently framed Blue Ice as a healthy alternative when stating she can make Blue Ice cocktails to contain fewer calories than an apple—a claim that doesn’t appear possible.
As Sava and Pop see it, 21st Century and paid influencers “devised a scheme” that entails influencers acting as if they’re “disinterested consumers” while tagging and recommending Blue Ice on social media platforms. The accused influencers include Leanna Bartlett, who has more than 3.5 million followers on Instagram, and Alexa Collins, who has more than 2.8 million followers.
The defendants argue the lawsuit is deficient in multiple ways. They contend Sava and Pop are merely dissatisfied consumers, the kind of injury the law doesn’t protect. The defendants also maintain that much of the lawsuit involves “puffery,” which are boastful, but lawful, opinions—as opposed to verifiable facts—about a product or service. 21st Century saying it has the “goal” of offering “the best tasting vodka” doesn’t supply an actionable claim since “best tasting” is inherently subjective.
The defendants also maintain the FTC doesn’t legally obligate influencers to disclose their connection. FTC guidelines, the defendants contend, are advisory, not compulsory, and even if they were compulsory, requirements would concern endorsements, not influencing. Another hurdle for the plaintiffs, the defendants charge, is they didn’t buy Blue Ice directly from 21st Century and thus lack the requisite contractual nexus necessary for a breach of express warranty claim.
Lefkow found many of the defendants’ assertions unpersuasive. While she agreed that claims regarding taste are puffery and held breach of express warranty claims must be dismissed due to the absence of a contractual relationship, she underscored how other claims concern measurable specifics, such as how many calories Blue Ice really contains and how it was crafted, and thus do not fit within the realm of puffery.
The judge also emphasized that whether the influencers engaged in deceptive or misleading conduct depends on state law, not the FTC Act or implementing federal regulations. Lefkow clarified the FTC Act sets the basis for government enforcement of consumer protection whereas state laws, including what are known as Little FTC Acts because they are patterned on the FTC Act, are relevant for claims by private citizens.
Sava et al. v. 21st Century Spirits et al. thus advances to pretrial discovery, where the plaintiffs will seek evidence and testimony that supports their assertions. But in a footnote, Lefkow implied potential damages—stemming from $11 a bottle— are likely modest and urged the parties to “seriously consider settlement before the cost of litigation overwhelms the value of the case.”
For athletes who influence, the case highlights that when they promote or amplify items to their followers, they should be mindful of potential lawsuits if they aren’t transparent about whether they’re being paid.
(This story has corrected the case name at hand in the penultimate paragraph.)