Kevin Hart may know how to land a punchline, but the National Advertising Division (“NAD”) recently reminded him that when it comes to influencer endorsements, the only thing that should be subtle is the humor—not the disclosures. In a series of related decisions, NAD provided valuable guidance on influencer marketing and disclosure practices. The case involved NAD’s inquiry into the social media posts of Kevin Hart, an actor, comedian, and entrepreneur, who promotes products for JPMorgan Chase Bank, N.A. (“JPMC”) and Fabletics, Inc. (“Fabletics”).
NAD’s Inquiry into Hart’s Disclosures
Kevin Hart, a prominent actor and comedian, frequently promotes Fabletics and JPMC to his 177 million Instagram followers. NAD found that his posts failed to clearly disclose his financial ties to these brands. The Federal Trade Commission (“FTC”) requires that material connections be disclosed in a clear and conspicuous manner to ensure consumer understanding.
While Hart argued that his relationships were well-known due to his public profile, NAD concluded that many consumers—especially those unfamiliar with celebrity endorsements—would not recognize his connection to these brands. But NAD wasn’t buying the “everybody knows” defense. Pro tip: If your legal argument sounds like a line from Mean Girls, it might not be your strongest foot forward.
NAD’s Findings and Recommendations: (Spoiler: It Wasn’t “LOL”)
NAD determined that Hart’s previous disclosures were insufficient under the FTC guidelines. While some consumers might assume a connection, NAD emphasized that a clear and conspicuous disclosure is required whenever a substantial portion of the audience might not recognize the endorsement’s underlying financial ties.
In response, Hart voluntarily updated his posts to include more noticeable and transparent disclosures of his relationships with JPMC and Fabletics. NAD treated these updates as if they were formal recommendations, acknowledging Hart’s commitment to complying with the FTC guidelines and his team’s efforts to meet disclosure requirements.
Key Takeaways for Influencers and Advertisers: Read This Before You Hit “Post”
NAD’s trio of decisions (one each for Hart, as the influencer, and the two advertisers JPMC and Fabletics, summaries available at 1, 2, 3) offers valuable lessons for influencers and advertisers:
- High-profile status does not exempt influencers from clear and conspicuous disclosure requirements. Even comedy legends aren’t immune to the serious business of advertising law.
- Disclosures must be easily noticeable and understandable to consumers, especially when there is a material connection to the brand.
- Even long-standing relationships must be disclosed if a significant portion of the audience might not be aware of the connection.
- “Everybody knows” is not a substitute for a proper disclosure. When in doubt, disclose. When not in doubt… still disclose.
- For influencers and brands navigating endorsement regulations, this case underscores the importance of transparent and consistent disclosure practices. The takeaway? If your content has a commercial connection, spell it out—don’t bank on your audience to read between the punchlines.
