Mikayla Nogueira is a 24-year-old beauty influencer with over 14 million followers on TikTok. At last count, that’s more than the number of followers we have at Ad Law Access, so she must be doing something right. (Or perhaps we’re doing something wrong by neglecting our readers’ beauty needs, but that’s a topic for another day.) In any event, Mikayla recently shared a tip that “literally just changed [her] life” and figuratively just ignited a battle on the internet.
Last week, Mikayla posted a sponsored video in which she applied L’Oreal’s Telescopic Life mascara to her eyelashes and invited her followers to judge the results. And judge, they did. Some followers seemed skeptical that the product could achieve those results and many accused the influencer of wearing false eyelashes in the “after shot.” Mikayla responded: “Noooo omg loreal would never allow that in a partnered post!!! But ya’ll proving my point.”
Within hours, other influencers popped up all over the internet determined to disprove Mikayla’s point. They posted close-up photos of Mikayla’s eyelashes and explained to their own followers why those results couldn’t be achieved with mascara alone. Others defended Mikayla and felt confident that the product might just be that good. While forensic beauticians continue to debate the limits of what mascara can achieve, let’s consider this from an Ad Law standpoint.
Would the FTC allow an influencer to enhance the results of a product? “Noooo omg they would never allow that in a partnered post!” Although most recent enforcement actions have focused on whether influencers clearly disclose their connections to the companies they endorse, the FTC has noted that advertisers and influencers can be held liable for misleading or unsubstantiated representations regarding a product’s performance or effectiveness.
In the UK, the Advertising Standards Authority has addressed this more directly in guidance related to the use of filters for beauty products. “The use of filters in ads is not inherently problematic but is likely to become an issue if a filter exaggerates the efficacy of the product being advertised, and it will be the advertiser’s responsibility to demonstrate that is not the case.” The same would be true in the US (whether the efficacy is exaggerated through a filter or other means).