The Antitrust Attorney Blog
Author: Luke Hasskamp
Your competitor’s product is suddenly everywhere on social media. Influencers you have never heard of call it cheaper and better than yours. Some of the posts are tagged as sponsored, and some are not. It looks like genuine enthusiasm, but it may be your competitor’s advertising campaign instead. Can you do anything about it?
Potentially, yes. Paid influencer posts can qualify as commercial advertising, and a false factual claim made through an influencer campaign can support a Lanham Act claim the same way a false statement in a traditional advertisement can. A separate question arises when the only alleged problem is that the influencer did not disclose the sponsorship, which usually is not enough by itself to support a Lanham Act claim.
Courts are taking influencer campaigns seriously
In early 2026, a district court refused to dismiss a plaintiff’s false-advertising claim against Temu based on statements Temu’s paid influencers made. Roadget Business Pte. Ltd. v. PDD Holdings Inc., 2026 WL 44864 (D.D.C. Jan. 7, 2026). Shein alleged Temu gave influencers guidelines requiring them to post that Temu’s products were “cheaper” and of “way better quality” than Shein’s, which they did. Several influencers identified their “paid partnership” with Temu. According to the court, the allegations tied the influencers to Temu closely enough to treat the posts as Temu’s own advertising, and that the comparative price and quality claims could be considered objective facts.
This clearly suggests that a paid influencer post is not beyond the reach of false-advertising law, and even a disclosed sponsorship does not protect a false factual claim.
When is an influencer’s post more than an opinion?
The Lanham Act is mostly likely to be implicated when a social media post makes an objective claim, one that can be proven true or false.
Payment can convert a post into advertising, but it does not turn every opinion into an objective statement of fact. An influencer can say “I love this” or “this is my favorite,” even when paid, and a genuinely subjective view stays protected opinion.
In the Temu case, the court allowed claims built on statements that Temu’s products were “cheaper” and of “way better quality,” because in context consumers could reasonably consider those to be factual comparisons. The influencers’ disclosed sponsorship did not save the allegedly false claims, because the wrong the law reaches is the false factual message, not the fact of payment.
The Ninth Circuit made a related observation in the Ariix case (which you can read about here), noting that paid influencer posts can be advertisements even though they do not look like conventional ads. See Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107, 1116 (9th Cir. 2021). That was an illustration in the court’s commercial-speech analysis, but Ariix itself involved a rigged ratings guide, not an influencer.
Important Disclosure: Bona Law represented Ariix (the winning party) in the Ninth Circuit and in the district court below.
A missing “#ad” usually is not enough by itself
Failing to disclose that a post was paid for is generally not, on its own, something a competitor can sue over under the Lanham Act, because the Act imposes no freestanding duty to disclose.
Consider an affiliate product reviewer. In one case, a mattress reviewer disclosed his affiliate relationships, and the court held that his subjective assessments stayed his own opinions even though referral payments may have shaped them. Casper Sleep, Inc. v. Hales, 2016 WL 6561386 (S.D.N.Y. Oct. 20, 2016). As the court put it, a “kickback does not make his thoughts any less his own.” But the same reviewer’s factual assertions that no review was “paid for” or “influenced by any manufacturer” were verifiable claims alleged to be false, and those stated a claim. The viability of the claim turns on the factual representations that turn out to be false, not simply in the payment or the failure to disclose it.
Can you go after the brand, not just the influencer?
Influencers themselves are potentially liable for false advertising claims, though the brand is usually the better target.
For brands, ordinary business relationship with someone who posts about their product is likely not to raise any Lanham Act eyebrows. It’s when a company hires influencers and directs them to make the false statements that courts are more likely to treat the posts as the company’s own advertising. That is what is alleged to have happened in the Temu case. It is safe to say that it takes more than an ordinary business relationship. The company that paid for and directed the campaign is plainly selling its own product, which usually makes it the better defendant.
Some courts also recognize contributory false-advertising liability, where a defendant knowingly induces or materially participates in another’s false advertising. The Eleventh Circuit did so in Duty Free Americas, Inc. v. Estee Lauder Cos., 797 F.3d 1248 (11th Cir. 2015), though not every circuit has addressed the question.
Should you sue the influencer personally?
Influencers almost always promote someone else’s product. This raises a wrinkle.
In the Ninth Circuit, commercial advertising must be aimed at influencing consumers to buy goods or services fairly attributable to the defendant. Suing an influencer over a third party’s product runs straight into that requirement. The Ninth Circuit left that question unresolved in our Ariix case where the nominal reviewer was promoting another company’s supplements.
The Ninth Circuit did suggest that agency theory might bridge the analytical gap. But the simpler theory is often against the seller that hired the influencer and directed the campaign.
What do you have to prove, and can you sue?
For an influencer claim, the key questions include:
- Was it advertising? Paid influencer posts usually present a strong case for commercial advertising, especially where a brand hired the influencer to promote its products.
- What was false or misleading? The claim generally must rest on an objective factual representation, not subjective opinion or puffery.
- Would it matter to buyers? The falsehood must be material to buying decisions aka likely to influence them.
- Did it reach the market? The message must amount to advertising or promotion, not private communications. In the Temu case, internal guidelines alone would not have been enough. That claim survived because the influencers actually published the required statements.
- Did it hurt your business? Under Lexmark, the deception must be tied to a commercial injury in sales or reputation. A competitor losing sales to a deceptive campaign is the kind of plaintiff the law is built for.
Doesn’t the FTC already regulate this?
The FTC addresses influencer marketing more directly than the Lanham Act does. Its Endorsement Guides, which are the FTC’s interpretation of the law rather than a standalone rule, say that a material connection between an endorser and a seller should be disclosed clearly and conspicuously, including in social-media posts. Separately, its 2024 Consumer Reviews and Testimonials Rule prohibits specified fake and manipulated review practices and fake indicators of social-media influence.
The FTC alone enforces both, and there is no private right of action, though its guidance can inform whether a practice is deceptive in a Lanham Act case.
State law may sometimes reach nondisclosure more readily
The Lanham Act may not be the only, over even best, avenue for relief. State consumer-protection or unfair-competition laws may reach a misleading omission that does not independently support a Lanham Act claim. In one case, a federal court applying Florida and Illinois law allowed consumers to pursue a deceptive-practices theory based in part on paid influencers presenting themselves as disinterested consumers without disclosing their relationship to the brand. See Sava v. 21st Century Spirits, LLC, 2024 WL 3161625 (N.D. Ill. 2024). That was a consumer suit. Whether a competitor can bring a comparable claim depends on the particular state statute and its standing requirements.
What to do now
If you believe you are being impacted by false advertising should move quickly to preserve evidence. You should capture the posts with dates before they are edited or deleted, including evidence of how far they spread, such as views, follower counts, reposts, engagement, campaign landing pages, and retailer links. And, if possible, you should preserve any evidence regarding who controlled the message, such as campaign briefs, required talking points, influencer guidelines, scripts, approval rights, affiliate agreements, and payment terms. Those materials are often what connect the posts back to the brand. Also, track the effect on your sales, if you can.
If you run influencer campaigns yourself, keep the same records, so you can show what you did and did not tell an influencer to say.
How we can help
Bona Law represents businesses on both sides of false-advertising and unfair-competition disputes, and we litigated a leading Ninth Circuit case on paid promotion presented as independent review. If a competitor is using a paid influencer campaign to take your customers, or you have been accused of running one, contact us.