Legally Speaking: When a Celebrity’s Good Review Is A Bad Thing

Kristi Davidson

Kristi Davidson

A national magazine photographs a celebrity in her kitchen with your iconic knife block prominently displayed on her countertop.  You post a link to the article on your Facebook page.
While shopping in New York City, a celebrity tweets “Love [BRAND’s] new [PRODUCT] design!  Everyone grab one—they won’t last long!”  You retweet.
In response to an interviewer’s request that a sports icon describe his food regimen, the player says that he has been mixing a vitamin-packed smoothie in your blender for years, and he can’t imagine starting his day any other way.
A blogger writes that she has tried your new line of air bake cookie sheets and is amazed at how much more evenly and quickly they bake cookies than traditional pans.
While each of these scenarios may be a dream come true for increasing product sales, they could potentially land you in hot water, whether via private civil suit or Federal Trade Commission enforcement.  There are several legal issues to consider about “privacy and publicity” rights, “unfair or deceptive” endorsements and “false advertising” before diving into the world of social media to spread positive feedback about your product:
Privacy/Publicity.  Most states prohibit the commercial use of a person’s name, likeness or image without advance, written permission to do so.
False Advertising.  Additional remedies may be available through the federal Lanham Act or certain state laws, which prohibit false or misleading representations in advertisements concerning a product’s endorsement, sponsorship or origin.
Deceptive Endorsements.  FTC has issued extensive guidelines governing the use of endorsements and testimonials.  An “endorsement” is defined as any advertising message that a consumer is likely to believe reflects the opinions, beliefs or experience of the person appearing in the advertisement.  The endorsement must be based on the endorser’s real experience with the product, reflect his/her honest opinion, be capable of substantiation and, in many circumstances, disclose the connection between the endorser and the seller of the advertised product.
Returning to our four scenarios:  In the first, unless you have obtained the celebrity’s permission, he/she may demand compensation, and you may be required to pay, for the unauthorized use of her image to promote the sale of knife blocks.  Think JLo’s and Marc Anthony’s $5 million suit against the maker of Silver Cross prams, who reproduced on its website a picture depicting the celebs cheerily strolling with their twins.
In the second scenario, if you have not obtained permission to retweet, then you may face a demand to compensate for the use of the celebrity’s name to endorse your product.  On the other hand, if you gave the product to the celebrity with the understanding that he/she would tweet favorably about it, then you face a potential claim by FTC that the tweets are deceptive.  Same goes for scenarios three and four.  One way to minimize this risk is to add the hash tag #spon, #paid or #samp on each tweet.
And you’d have even more problems if the celebrity’s statements in scenarios two, three or four were not their honest opinions, were not based on actual usage or could not be substantiated.
The bottom line:  In this fast-paced world, look before you leap when using social media to market your products.  When in doubt, ask an expert how to share positive feedback without unwittingly getting yourself into trouble.
More on celebrity endorsements next month.

Kristi Davidson is a shareholder in the New York City office of Buchanan Ingersoll & Rooney. She has many clients in the home goods and consumer products industry. She can be reached at kristi.davidson@bipc.com.

Editor’s Note: The comments are those of the author and are not necessarily views shared by HFN or Macfadden
Communications.