In yet another Decision from NAD addressing influencer disclosures, demonstrating the self-regulatory body's ongoing concern with the influencer ecosystem, NAD resolved its routine monitoring inquiry with fashion brand Skims Body, Inc. The case concerned Skim's relationship with its paid influencers Brittany Mahomes and Lana Del Ray, and the measures Skims takes to ensure compliance with the FTC Endorsement Guides.
NAD's inquiry focused on whether Del Rey and Mahomes adequately disclosed their financial relationship and material connections with Skims while promoting its products on social media. A few specific posts were at issue, where the influencers, though wearing Skims product, did not explicitly disclose their material connection to the brand. Skims argued that not only does it already contractually require its influencers to make material connection disclosures, but it also provides them with instructions and monitors their social media accounts for compliance. The usual.
So what's interesting in this case?
First, Skims also argued that the posts in question made no specific mention of Skims in the post copy and do not identify the Skims brand; therefore, Skims argued, the posts cannot be reasonably understood as endorsements or testimonials. However, NAD noted that although the posts did not mention or tag Skims in the description accompanying the post, "when a viewer puts their cursor over the picture, the brands and people that are tagged appear and the Skims brand appears as tagged." Such tagging is sufficient to qualify as an endorsement, triggering the FTC's clear guidance that tagging a brand an influencer is wearing in a social media post is an endorsement of the brand.
And, second, most interesting, is the argument Skims made about the nature of the posts. Skims apparently took the position that the photography in the influencers' posts was "fashion shoot type quality," making it obvious to consumers that there was a "clear partnership" between the influencers and the brand, obviating the need for an explicit disclosure. NAD did not agree: it determined that the photos were not so "highly or unusually stylized" as to indicate a "clear partnership." Rather, NAD found that "[t]he photo merely features Ms. Mahomes and her family with her hair and makeup done, photos that Ms. Mahomes could have easily created herself." While it does certainly seem possible to me that visual elements in an influencer post could be of such professional quality and so consistent with the brand's own visual identity that it would be clear that the post is an ad for the brand, determining where that line is could be tricky. It may be easier to just disclose the connection.
Skims instructed Del Ray to modify or discontinue the posts and will use reasonable efforts to have Mahomes do likewise. Matter resolved.
Skims Body, Inc. (Advertising by Skims Body, Inc.), NAD/CARU Case Reports, Report #7365 (March 2025)
This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.
