Marketing Claims Are Legal Claims
Influencers, creators, and brands often treat marketing copy, influencer posts, beauty/wellness claims, AI-generated ad copy, and sponsored content as “just marketing.” But those claims can create FTC, platform, contract, reputational, and consumer-protection risk.
AI used in advertising and marketing claims adds a layer of complexity to the challenges and issues marketers must concern themselves with and consumers need to navigate.
What Counts as an Advertising Claim?
A marketing or advertising claim is an express or implied statement, slogan, or promise made by talent or a brand regarding the benefits, features, quality, or performance of the brand’s products or services. In the United States, advertising claims are regulated by the Federal Trade Commission (FTC), the government agency responsible for ensuring that such claims are truthful, substantiated by evidence, and not deceptive or unfair to consumers.
At the federal level, whether AI-generated content requires disclosure depends on context, including whether the campaign is likely to mislead consumers. In New York, General Business Law § 396-b imposes a separate disclosure requirement for covered commercial advertisements that contain a “synthetic performer” — a digitally created or modified asset intended to create the impression of a visual or audiovisual performance by a human performer who is not recognizable as an identifiable natural person. NY GBL § 396-b is a first-in-the-nation synthetic-performer disclosure law, and it took effect June 9, 2026. Once the statute applies, the disclosure obligation does not depend on a separate showing that consumers were likely to be misled. The statute also includes threshold definitions and exceptions, including for audio advertisements, AI used solely for language translation, certain expressive-work promotional materials, and publishing/distribution media that merely disseminate the ad.
To differentiate themselves in an increasingly competitive marketplace, marketers must develop innovative messaging strategies and leverage a variety of channels to effectively engage consumers. Social media platforms and Artificial Intelligence (AI) are among the tools adopted across the industry. Although these marketing methods offer nontraditional approaches and may appear more transient or informal than traditional advertising channels, they remain subject to the same legal and regulatory requirements governing advertising claims.
Influencer Marketing Is Not Informal Advertising
Social media platforms like Instagram and TikTok have produced the “Influencer.” These influencers often have an affiliation with a brand or brands, and have endorsement deals to promote a brand’s product or services with their followers. Influencer marketing is not limited to celebrities or creators with large followings. A post, tag, video, affiliate link, testimonial, or product recommendation may raise endorsement issues when the person making the statement has a relationship with the brand that consumers would not reasonably expect. That relationship may include payment, free or discounted products, affiliate compensation, employment, family ties, or another material connection.
Material Connections Must Be Disclosed
Under current FTC guidelines, these endorsements or promotional language about a product’s performance can be considered claims, and when expressed as such, need to be truthful and supported by evidence. The FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising provide some scenarios for endorsers and their brands to consider.
Another critical consideration for influencers is the subject of disclosure. The FTC continues to emphasize that when influencers endorse products or services on social media, they must clearly disclose any relationship, or “material connection,” they have with the brand or product being promoted. A material connection may include a financial relationship, receipt of free or discounted products or services, or even less obvious connections, such as personal, familial, or employment relationships. These disclosures are necessary to ensure that consumers can accurately assess the credibility and objectivity of an influencer endorsement.
In 2023 the FTC sent several warning letters to influencers for failing to properly disclose material connections in advertising. The agency has also created a Disclosure 101 document that provides some useful tips to help individuals stay compliant.
While influencers remain under the scrutiny of regulators, they also face increasing attention from plaintiffs’ attorneys. For example, a class action lawsuit was recently filed in a New York court against Gymshark (Lupea v. Gymshark USA, Inc., No. 1:26-cv-05073) alleging that the company violates federal guidance and New York General Business Law § 349. The complaint asserts that Gymshark violated consumer protection laws by recruiting popular fitness influencers on social media sites like TikTok and YouTube to endorse their brand while failing to disclose their financial relationships with the company.
Other class actions against brands including Celsius, Shein, and Revolve alleged that paid influencer endorsements were presented as organic recommendations, that material connections were omitted or buried, and that consumers paid inflated prices as a result. Those complaints did not name only the brands; they also named individual influencers, a risk that creators, talent, agencies, and managers should take seriously.
These cases highlight the growing legal risks associated with influencer marketing and highlights the importance of complying with federal disclosure requirements.
Reviews, Testimonials, and Affiliate Content Create Risk
The topic of “product reviews and testimonials” is an area of active FTC concern. The agency’s final rule on the Use of Consumer Reviews and Testimonials was published in 2024 and addresses fake, false, and deceptive consumer reviews and testimonials used in the marketplace. This final rule discusses the difference between a consumer review and testimonial. A consumer review is really just a product evaluation, but a testimonial is an advertising message. The FTC states here that businesses that put fake or unsubstantiated performance claims on their own websites are disseminating them and not merely “hosting” them, and the business could be liable. The bottom line is that it’s really important for brands and business owners to know the law governing these distinctions and avoid claims copied across platforms without legal review.
AI-Generated Advertising Requires Careful Review
Undisclosed AI-generated images of influencers used in marketing make it very difficult for consumers to determine what’s real versus what’s fake. As consumers try to authenticate advertising, the FTC has stepped in with some guidance for industry and makes clear that AI-generated images of personas and influencers who are promoting a product or brand may require clear and conspicuous disclosures depending on the context. Doing this avoids misleading consumers about authenticity, independence, or material connections between influencer and the brand being promoted.
AI tools can generate advertising copy, images, testimonials, avatars, and campaign concepts quickly. But speed does not remove the need for legal review. AI-assisted campaigns may create unsupported product claims, fabricated testimonials, misleading impressions of professional credentials, unclear endorsement relationships, unauthorized likeness or voice uses, or disclosures that fail to appear clearly in the advertisement itself.
The FTC expressly prohibits AI-generated fake reviews and testimonials, which violation carries civil penalties — reported at $53,088 per violation for 2026, with each non-compliant post counting as a separate violation.
Questions to Ask Before a Campaign Goes Live
If you’re an advertiser seeking to promote your brand and stand out competitively, it is critical that you are aware of and comply with rapidly evolving state and federal regulations to avoid being out of compliance and possibly face enforcement actions. Before a brand, creator, agency, or platform launches a campaign, the legal review should ask: What claim is being made? Who is making it? Is it express or implied? What proof supports it? Is the relationship disclosed? Who bears responsibility if the claim is challenged?
Not only are lawmakers and regulators watching, but consumer class action lawyers are also watching. This is where our firm can help you.
How Rodriques Law helps
Rodriques Law helps brands, agencies, creators, production companies, and digital businesses review advertising claims and campaign materials before they go live. That includes claim substantiation, influencer and endorsement agreements, review and testimonial practices, AI-use provisions, synthetic-performer disclosures, platform terms, approval rights, takedown procedures, indemnity provisions, and response strategy if a campaign is challenged.
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