Tell Me Lies, Tell Me Sweet Little Lies: The FTC and Some State Attorneys General Sue for Deceptive Advertising

“Tell Me Lies, Tell Me Sweet Little Lies,” from the 1987 Fleetwood Mac song, “Little Lies,” came to mind in the last few days. One, because of the unfortunate passing of Christine McVie, the song’s co-writer. Two, because one of the authors of this Bulletin, who is a big fan of the band (and saw them perform live in college), found the lyric fitting when reviewing a recent government action.

In late November 2022, the Federal Trade Commission and a number of state attorneys general sued Google LLC and iHeartMedia, Inc. for airing approximately 29,000 deceptive endorsements by radio personalities, who promoted their experience with Google’s Pixel 4 phone in 2019 and 2020.¹ According to the FTC complaint, Google provided iHeartMedia with scripts regarding the Pixel 4 phone such as, “It’s my favorite phone camera out there, especially in low light, thanks to Night Sight Mode,” and “It’s also great at helping me get stuff done, thanks to the new voice activated Google Assistant that can handle multiple tasks at once.”² In total, more than 60 iHeartMedia radio personalities recorded advertisements endorsing the Pixel 4 across 10 major city markets, ranging from Atlanta and New York to Los Angeles and San Francisco. The complaint alleged these ads aired more than 10,000 times between October and December 2019 and more than 3,000 times February and March 2020. However, Pixel 4 phones were not provided to the influencers before recording and airing the majority of the ads. The complaint noted that, in January 2020, an iHeartMedia employee wrote an email to a Google employee stating in part:

Our influencers really need to have devices to truly make the creative sound authentic and personal and to understand firsthand what makes Pixel different. I know we discussed this in the past. Is there a way for us to get devices for the talent in advance of the campaign? If Google is unable to provide for all, maybe we could at least get one per market and make sure all of the talent gets to experience it before launch?

The Google employee replied that Google would “not be able to provide devices at this time,” and said she believed “our team has also provided write-up on how to talk about the device.” The complaint then alleged that Google subsequently provided iHeartMedia with only five Pixel 4s, one for each market where the February 2020 ads were to be recorded.

In sum, the government alleged that the influencers promoted products they had not used, thereby violating truth-in-advertising laws. The FTC action and the state judgments settling the allegations prohibit the companies from making similar misrepresentations. Google and iHeartMedia must also pay $9.4 million in penalties.

AGG Observations

• This action by the FTC and state attorneys general is a reminder that the government will enforce those laws that prohibit false and deceptive advertising.
• The Food and Drug Administration has also taken action when it believes the company has promoted products in a false and misleading manner.
• The use of endorsers and influencers on social media is becoming more prominent in life science product advertising. We see it often as we review client promotional materials. However, companies must be mindful that the government is watching and may not be a fan of the aforementioned “little lies” song lyric.
• The FTC “Guides Concerning the Use of Endorsements and Testimonials in Advertising,” which address best practices and regulatory advice for social media advertising and similar campaigns, are being updated for the first time since 2009. When issued, companies would do well to consider them to help minimize misleading endorsements and testimonials.

[1] FTC Press Release available at https://www.ftc.gov/news-events/news/press-releases/2022/11/ftc-states-sue-google-iheartmedia-deceptive-ads-promoting-pixel-4-smartphone (last accessed Dec. 6, 2022).

[2] The complaint is available at https://www.ftc.gov/system/files/ftc_gov/pdf/2023092GoogleiHeartComplaint.pdf (last accessed Dec. 6, 2022).