Hello, Law Law Land readers! I took a blogging hiatus during the latter part of my pregnancy and early months of new parenthood, but I’m back. While certain things in my life have changed, at least one thing remains the same: my dedication to my favorite TV shows. But having a 3-month-old means I’m always struggling to stay caught up with those shows, which is why this post discusses an episode of The Good Wife that aired in mid-February. (If you are also a couple of episodes behind, spoiler alert! And if you don’t actually watch this show and have no clue who any of these characters actually are, well, sorry.)
In this episode, called “Red Team/Blue Team,” Will and Diane attempt to persuade their stubborn client, purveyor of “Thief” energy drink, to settle a wrongful death lawsuit brought by the family of a teenage girl. (Obviously, you can assume that the manufacturers of any product called “Thief” are only the most right-thinking, trustworthy clients you can find.) In order to persuade the client of the weaknesses of the case, they conduct a mock trial, with Alicia and Cary serving as plaintiff’s counsel. Research revealed that a freelancer engaged by the defendant company had acted as a cyber-shill, and had posted glowing reviews about the drink and its ability to help people lose weight on various websites, without disclosing any affiliation to the company. (If you want to know what one of these posts look like, just check the comment thread on any unmoderated blog or news website for some unsolicited glowing reviews of various black market pharmaceutical websites. V1agra, L0se W3ight, W0rk fr0M H0me, fR33 iP0ds!) When Alicia cross-examines the company’s marketing executive about this practice, he protests, “That’s not illegal!” Alicia agrees, but argues the company is still liable for a different reason (and of course, she’s our heroine, so it is).
But not so fast on that fake ads issue, my friends. Maybe television writers don’t have time to research the latest FTC before turning in a script, but lawyers certainly do. And, pursuant to the endorsement guidelines promulgated by the Federal Trade Commission, an online reviewer of a product must reveal any relationship with the seller, especially a financial connection. And lest you think that, “surely the FTC doesn’t really monitor these things,” wrong again. In the past two-and-a-half years, the FTC has become increasingly vigilant about the use of cyber-shills and deceptive claims. This is especially true when there are health implications to the claims, such as in the case of the energy drink featured on The Good Wife.
As an extreme example, the FTC recently succeeded in ceasing the operations of certain online marketers that allegedly used fake news sites to increase sales of their products. But the FTC also targets companies whose bloggers post reviews without announcing any affiliation, and significant fines can result (not to mention bad publicity and potential tarnishment of the brand).
As always, businesses should make sure they are being guided by the FTC guidelines and experienced legal counsel, not by TV lawyers. And writers and producers of The Good Wife, if you ever need a legal consultant for your show, feel free to give me a holler.