‘Negative Influencing’ Pushes FTC Rules on Ads and Testimonials

Influencer marketing has emerged as a powerful tool of modern persuasion. Consumers increasingly rely on social-media personalities to recommend products and signal what to buy, avoid, and trust. This relationship rests on a fragile premise: that influencer opinions reflect genuine experience, not undisclosed commercial orchestration.

While early regulatory attention focused on covert product promotion, a parallel practice has quietly taken hold. Brands are now deploying influencers to undermine competitors by casting doubt or discouraging purchase under the guise of independent opinion. This form of “negative influencing” relies on the same illusion of authenticity as traditional endorsements but largely have remained unexamined.

Whether an influencer is paid to praise one product or disparage another, the legal question is the same: Are consumers being misled about the source and motivation of the message they are receiving?

Regulatory Landscape

The Federal Trade Commission’s responded to influencer-driven marketing in 2023 when it revised its Guides Concerning the Use of Endorsements and Testimonials in Advertising. Influencers and advertisers now must disclose any “material connection”—including compensation, free products, affiliate revenue, family ties, or ambassador status—in a “clear and conspicuous” manner.

This standard is platform-agnostic. Disclosures must be unavoidable in the context in which the endorsement appears, not buried in truncated captions or behind “see more” prompts. The 2023 revisions also address practices that previously occupied regulatory gray areas. Fake reviews, deceptive testimonials, endorsements delivered by virtual or AI-generated influencers, and statements that imply independence despite financial ties are all now prohibited.

The goal is transparency: Consumers must be able to distinguish genuine opinion from sponsored persuasion, even when that persuasion is embedded in informal, stylized, or algorithmically amplified content.

The FTC paired these revisions with a 2024 Final Rule on Consumer Reviews and Testimonials, authorizing civil penalties for deceptive review practices. It prohibits selling or procuring fake reviews, conditioning compensation on expressing positive or negative sentiment, suppressing or misrepresenting negative reviews (subject to narrow exceptions), misrepresenting that reviews are independent when they are curated, and using fake social-media indicators such as fabricated followers or engagement.

These changes mark a shift from guidance to enforceable rules. Influencers, advertisers, and platforms now face compliance obligations calibrated to how consumers actually encounter advertising online, not how advertisers prefer to characterize it.

These rules fundamentally reshape how advertising must function on social media. Consumers no longer encounter endorsements in discrete advertising slot. They appear within personal narratives, lifestyle content, and casual commentary. The FTC’s revisions reflect this reality by requiring that sponsorship be unmistakable in real time.

The reforms extend to influencers’ credibility itself. Engagement metrics—likes, comments, and follower counts—play a central role in consumer trust. The FTC’s ban on fake social-media indicators recognizes that manipulated credibility can mislead consumers as effectively as undisclosed sponsorships. Brands are expected to supervise influencer relationships actively, not passively rely on disclaimers after the fact.

Emerging Litigation Trends

The consequences of these changes have surfaced in private litigation.

In Dubreu v. Celsius Holdings, a putative class action filed in the Central District of California, the company and affiliated influencers are accused of promoting Celsius products without adequately disclosing financial relationships. The plaintiffs allege these undisclosed endorsements distorted consumer perception and violated federal and state consumer-protection laws. A motion to dismiss is pending.

Similar theories appear in lawsuits against Revolve and Shein. In Negreanu v. Revolve, plaintiffs allege that influencers routinely included disclosures when promoting third-party brands but omit them when advertising Revolve’s own products, suggesting deliberate instruction to disguise paid promotions as organic content.

The complaint in Bengoechea v. Roadget Business PTA d/b/a/ Shein, similarly alleges that disclosures were omitted or relegated to locations unlikely to be noticed, contrary to the FTC’s clear-and-conspicuous standard.

Although these cases arise under state law rather than direct FTC enforcement, they rely heavily on the agency’s revised endorsement guides to define deception in the social-media context.

Collectively, they reflect growing judicial willingness to scrutinize not only whether disclosures exist, but how authenticity itself is strategically deployed.

Negative Influencing

Against this backdrop, negative influencing presents heightened regulatory and litigation risk. Negative influencing occurs when influencers are compensated to criticize or cast doubt on a competitor rather than praise a sponsoring brand. The practice is subtle and commercially effective, but legally indistinguishable from sponsored endorsements.

The FTC’s 2023 Guides make clear that an endorsement includes any message consumers are likely to perceive as expressing an individual’s beliefs or experiences.

Nothing in that definition limits endorsements to positive sentiment. A paid criticism (“I tried Competitor X; it’s terrible”) is still a sponsored representation. Failing to disclose the financial relationship constitutes a deceptive omission under Section 5 of the FTC Act.

Negative influencing carries additional risk. Because critical statements often involve factual assertions, they may implicate defamation, false advertising, or tortious-interference claims alongside consumer-protection liability. For advertisers, paying for criticism triggers the same disclosure obligations as paying for praise. For influencers, transparency is mandatory regardless of tone or sentiment.

As litigation against Celsius and others progress, courts will have early opportunities to test these principles. Companies that rely on influencer marketing—whether positive or negative—should treat disclosure as a compliance requirement, not stylistic choices.

The FTC has left little ambiguity: In the digital marketplace, authenticity is no longer optional. It is the regulatory baseline.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Stefanie D. Fischer is a career law clerk in the judiciary and an adjunct professor at Roger Williams University.

Daniel J. Procaccini is an attorney and shareholder with Adler Pollock & Sheehan PC based in Providence, Rhode Island.

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