Influencer’s Long Lashes Could Raise Ad Law Issues – Advertising, Marketing & Branding

Mikayla Nogueira is a 24-year-old beauty influencer with over 14
million followers on TikTok. At last count, that’s more than
the number of followers we have at Ad Law Access, so she must be
doing something right. (Or perhaps we’re doing something wrong
by neglecting our readers’ beauty needs, but that’s a topic
for another day.) In any event, Mikayla recently shared a tip that
“literally just changed [her] life” and figuratively just
ignited a battle on the internet.

Last week, Mikayla posted a sponsored video in which she applied
L’Oreal’s Telescopic Life mascara to her eyelashes and
invited her followers to judge the results. And judge, they did.
Some followers seemed skeptical that the product could achieve
those results and many accused the influencer of wearing false
eyelashes in the “after shot.” Mikayla responded:
“Noooo omg loreal would never allow that in a partnered
post!!! But ya’ll proving my point.”

Within hours, other influencers popped up all over the internet
determined to disprove Mikayla’s point. They posted close-up
photos of Mikayla’s eyelashes and explained to their own
followers why those results couldn’t be achieved with mascara
alone. Others defended Mikayla and felt confident that the product
might just be that good. While forensic beauticians continue to
debate the limits of what mascara can achieve, let’s consider
this from an Ad Law standpoint.

Would the FTC allow an influencer to enhance the results of a
product? “Noooo omg they would never allow that in a partnered
post!” Although most recent enforcement actions have focused
on whether influencers clearly disclose their connections to the
companies they endorse, the FTC has noted that advertisers and
influencers can be held liable for misleading or unsubstantiated
representations regarding a product’s performance or
effectiveness.

In the UK, the Advertising Standards Authority has addressed
this more directly in guidance related to the use of filters for
beauty products. “The use of filters in ads is not inherently
problematic but is likely to become an issue if a filter
exaggerates the efficacy of the product being advertised, and it
will be the advertiser’s responsibility to demonstrate that is
not the case.” The same would be true in the US (whether the
efficacy is exaggerated through a filter or other means).

For more tips on how to manage influencer campaigns, click here. And for more beauty tips, click here.

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