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.

Continue reading →

Author: Luke Hasskamp

Many modern buyers are skeptical of conventional advertising, so they look for something that seems more independent. They read reviews, check star ratings, and search for the guide, ranking, or “best of” list that promises an assessment free of the seller’s influence. That perceived independence is what makes a rigged review valuable to the company that pays for it, and damaging to the competitor it buries.

In Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107 (9th Cir. 2021), the Ninth Circuit confronted that problem. Bona Law represented Ariix and persuaded the court that a supposedly independent ratings guide, allegedly rigged in exchange for compensation, could be commercial speech and could contain actionable misstatements of fact under the Lanham Act. The court reversed a dismissal, holding that Ariix had plausibly alleged commercial speech, actionable factual statements, and sufficient dissemination. It expressly left for remand whether the guide was “commercial advertising or promotion” of the defendants’ goods.

You can read more about Bona Law’s Lanham Act and False Advertising Practice here. And you can read about its appellate litigation practice here.

This article traces what Ariix decided and what it reserved, along with the questions that decide these cases: what makes a purported review commercial speech, which statements are fact rather than opinion, whose goods the speech promotes, and whether the deception caused a cognizable commercial injury.

What the Ninth Circuit Decided in Ariix

Ariix and Usana competed in the nutritional-supplement market. Our client, Ariix, alleged that NutriSearch’s supposedly independent Guide systematically favored Usana and disadvantaged Ariix in exchange for hundreds of thousands of dollars in speaking and other fees and a hidden marketing arrangement. At the same time, the Guide portrayed itself as a neutral evaluator applying objective scientific criteria and expressly disclaimed any affiliation with the manufacturers it reviewed.

The district court dismissed the complaint with prejudice. It treated consumer product reviews as outside the Lanham Act even when biased or tainted by favoritism. The court concluded the alleged financial relationship did not make the Guide commercial speech, and held that the challenged statements were nonactionable opinion.

The Ninth Circuit reversed. It held that Ariix had plausibly alleged the Guide was “more like a sophisticated marketing sham rather than a product review guide,” and therefore commercial speech, and that Ariix had plausibly alleged actionable factual misrepresentations and sufficient dissemination. The court described the stakes in consumer terms: “when someone falsely claims to be independent, rigs the ratings in exchange for compensation, and then profits from that perceived objectivity,” the speaker has “drowned the public trust for economic gain.” But the court stopped short of holding that Ariix had satisfied every element. It expressly left the “defendant’s goods or services” question, which lies at the heart of “commercial advertising or promotion,” for the district court to decide on remand.

The Commercial-Speech Threshold

The first question in a disguised-review case under the Lanham Act is often whether the challenged speech is commercial at all. Genuine editorial, scientific, and consumer commentary receives substantial First Amendment protection. Commercial speech receives less, and a false or misleading commercial claim clears the first step toward Lanham Act liability. It is only the first step. Commercial speech is not automatically “commercial advertising or promotion,” a separate requirement addressed below.

Ariix applied the familiar factors from Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983): (i) whether the speech is an advertisement; (ii) whether it refers to a specific product; and (iii) whether the speaker has an economic motivation. Those factors are guideposts, not a rigid checklist, and a profit motive alone does not make speech commercial. What mattered in Ariix was the alleged hidden economic arrangement. Commercial motivation need not take the form of a direct sale to the audience, and an indirect financial benefit can count when economic gain is plausibly the primary purpose of the speech. Ariix alleged more than a publisher hoping to sell books. It alleged a concealed marketing arrangement in which the reviewers were paid substantial sums while shaping the Guide to favor Usana.

That reasoning reaches beyond nutritional supplements. Whenever a speaker presents itself as an independent evaluator while taking economic benefits tied to the products it evaluates, Ariix supplies a framework for asking whether ostensibly editorial speech has become commercial.

What Is Actionable, and What Is Just Opinion

A crucial limit runs through Ariix: an evaluative rating is ordinarily opinion, not fact. The Guide’s five-star ratings remained nonactionable even though the author described the methodology as objective and scientific, because selecting and weighting the criteria required subjective judgment. A plaintiff cannot turn a subjective score into a factual representation merely by labeling the methodology “objective.”

The actionable statements lay elsewhere. First, the Guide’s express claim that it was “not associated with any manufacturer” was a representation about itself, capable of being proven true or false. Second, the “Medal of Achievement” certification rested on defined, pass-or-fail criteria, including compliance with specified manufacturing practices and laboratory verification of label claims. Ariix alleged that withholding the medal from a qualifying product falsely implied those objective criteria had not been met, an implication the court found “specific, measurable, and capable of being falsified.”

The Ninth Circuit applied the same fact-versus-opinion principle two years later in Enigma Software Group USA, LLC v. Malwarebytes, Inc., 69 F.4th 665 (9th Cir. 2023). Looking to the totality of the circumstances, the court held that an anti-malware company’s designations of a competitor’s software as “malicious” and a “threat” conveyed verifiable factual assertions in that technical context. Drawing directly on Ariix, the court explained that such a designation “can be reduced to a binary determination based on falsifiable criteria,” and so was actionable rather than mere opinion.

Continue reading →