Literal Falsity and the Role of Social Media Influencers

This Comment seeks to analyze and resolve the current circuit split and justify the solution based on changing forms of advertising through social media. In addition, this Comment identifies certain categories of goods and services such as skincare, food and beverages, and medical products that warrant the presumption of materiality. Shifting the burden to the defendant for these particular categories would deter influencers and the companies who employ them from making potentially false and misleading statements about products and services that can affect a consumer’s physical wellbeing. This Comment proceeds as follows: Part II provides background on the Lanham Act, the history of the false advertising claim, and the past and present advertising landscape. Part III addresses the current circuit split regarding the presumption of materiality. Part IV asserts that there should be a presumption of materiality because of the influence of social media in today’s society. Part V asserts that the Supreme Court should resolve the circuit split in favor of the presumption, proposes a legislative amendment to the Lanham Act to formally recognize the presumption, and discusses a potential role for social media companies. Part VI concludes in favor of the presumption.