Health influencers face mounting lawsuits! From Liver King to F-Factor, check what is happening

When Joe Loney discovered Liver King, a shredded fitness influencer known for eating raw organs, he was hooked.

In June the Federal Trade Commission released the first update to its Endorsement Ad Guidelines in a decade, with an eye to influencer marketing. (Pexels)

When Joe Loney discovered Liver King, a shredded fitness influencer known for eating raw organs, he was hooked. By working out and sticking to a primal diet, the 35-year old Briton believed, he could attain the same ripped physique as Brian Johnson, the influencer's real name. Beginning in 2021, Loney ate a daily steak so rare it was almost raw, taking a break only every two to three months.

Then, in December, the king made a confession to his subjects. He admitted in a YouTube video, which now has almost 4 million views, that he was taking roughly $11,000 of steroids a month. Next he was hit with a $25 million lawsuit claiming he used deceptive marketing for his Ancestral Supplements, which he says have generated more than $100 million in sales a year.

“I felt betrayed,” said Loney, who wasn't part of the now-discontinued lawsuit. “I probably made at least 10 or 20 comments on his videos saying, ‘When are you going to stop doing steroids?'”

Johnson is just one of many health and wellness influencers with millions of followers who are being sued over alleged misleading or false product claims. The lawsuits come as online promoters move from endorsing other companies' products to creating and pushing their own. Meanwhile regulators are looking more closely at influencer marketing, which is expected to exceed $21 billion this year, according to an industry report.

In June the Federal Trade Commission released the first update to its Endorsement Ad Guidelines in a decade, with an eye to influencer marketing. Among other refinements, the update defines a “clear and conspicuous” endorsement disclosure as one that is “difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers.” The update also says all parties in a marketing campaign can be held liable for breaches, including the content creator.

The document appears to fill a longtime need. According to a 2017 study by influencer marketing agency Mediakix, of the most followed celebrities on Instagram, 93% had failed to meet the FTC endorsement rules at the time.

Even with clearer guidelines, though, it's still something of a free-for-all.

Oversight hasn't kept pace with that growth. For example, under the US Dietary Supplement Health and Education Act of 1994, products such as Johnson's Ancestral Supplements don't need Food and Drug Administration approval before going to market.

Turning to Courts

When consumers feel cheated, they may turn to the courts. Last October a group of women sued wellness influencer Tanya Zuckerbrot and her company F-Factor, also in New York state court. F-Factor clients have included supermodel Olivia Culpo and, Zuckerbrot has said, television journalists Megyn Kelly and Katie Couric.

“What works for me is going to be different than what works for you,” said Christine Whelan, a clinical professor of consumer science at the University of Wisconsin at Madison. “Who's to say whether it's the influencer who is being deceptive, or if the supplements or meal replacement bars actually don't work? It's such an amorphous industry.”

The plaintiffs in the F-Factor case claimed the company's high-fiber powders and supplements caused “intestinal blockages requiring emergency surgery, debilitating gastric pain, disordered eating, severe allergic reactions, and other serious and permanent injuries.”

Zuckerbrot's attorney, Scott Haworth, said in an email that “many of the claims” have “been proven false as evidenced by third-party toxicology testing.” He said the plaintiffs haven't “provided a single medical record or evidence of injury. The reason is obvious: the case has no basis in law or fact.” Haworth added that Zuckerbrot is a trained dietitian. She earned a masters degree at New York University.

The global wellness market — including nutrition, fitness, sleep and mindfulness, among other areas — was estimated to be $1.5 trillion last year, with annual growth of 5% to 10%, according to a 2022 report by McKinsey & Co. The US market was more than $450 billion, expanding at more than 5% annually, McKinsey estimated. The firm found that influencers are a critical part of the market.

Liver King's Johnson didn't respond to a request for comment on the lawsuit. It was filed in New York state court in December by a consumer who sought to represent a whole class of customers, and who then voluntarily discontinued the suit in March without explanation. The FTC declined to comment.

$300 Fitness Plans

In February of last year, Texas sued influencer Brittany Dawn Davis, who has more than 1.3 million followers on TikTok. The state alleged that she scammed thousands of customers with her nutrition and fitness plans, which cost from $92 to $300, by promising customized coaching they didn't get.

At least 14 who sought refunds mentioned eating disorders in their complaints, saying Davis “provided cardio exercises and low-calorie macronutrient suggestions that would only be suitable for someone who needed to lose weight, not put it on.”

In June, Davis agreed to pay $400,000 to settle the suit.

The FTC has brought lawsuits of it own. In 2020 it sued Teami LLC, alleging the tea and skin care company made deceptive health claims and paid social media influencers for endorsements they didn't adequately disclose. Teami improperly claimed its teas would fight cancer, clear arteries and treat and prevent flus, the agency said. The case settled for $15.2 million.

Whelan, the consumer science professor, predicted more lawsuits against influencers but said the FTC guidelines update is a “warning flag” for the industry.

“The legal system is beginning to say: Could we use some existing regulations to crack down on the worst offenders?”