Since the ill-fated Fyre Festival, the federal as well as state governments have grappled with what liability, if any, to assign to internet influencers.  The Texas Attorney General has recently decided to better define that liability by filing suit against the now-disgraced influencer Brittany Dawn Davis for misrepresenting fitness and nutrition plans she promoted and sold to Texans.

In its lawsuit against Davis, Texas claims that Davis’s fitness plans violated the Texas Deceptive Trade Practices Act (DTPA), a broad consumer protection statute, and misled individuals with eating disorders. Texas is seeking non-monetary injunctive relief and between $250,000 and $1 million in fees and penalties against Davis.

On her website and through her social media accounts, Davis sold and marketed online fitness packages with the promise of personalized nutritional guidance and individualized coaching. Customers paid Davis anywhere from $92 to $300, depending on the plan, and the plans included the “30 Day Individualized Macros & Training” and “90 Day Individualized Macro and Training” plans.

However, the nutrition and fitness plans were not customized as promised, and Davis failed to provide the coaching and check-ins that she marketed. In fact, the State alleges that the plans Davis marketed and sold were nearly identical without any of the marketed customizable features. When consumers complained to Davis, she either failed to respond or offered only partial refunds. It was not until 2019 that her customers’ complaints amassed to such a point that it gained the media’s attention. Davis then issued a YouTube video apology and took her website down, but the damage was done.

Davis also allegedly held herself out as an “eating disorder soldier,” drawing in crowds of people suffering with such disorders. Some of her customers claimed that they picked Davis instead of other online coaches because they thought Davis had special training to address eating disorders. However, as with the persona fitness plans, the customers were sold plans that were not tailored towards their specific disorders.  For instance, customers needing to put on weight due to eating disorders were generically provided with plans that would further enhance additional weight loss.

As the power of internet influencers over consumer behavior continues to rise, more industries are looking to them to promote their products and services.  As the case against Davis illustrates, representations about services and products—regardless of whether those representations come from the supplier or an influencer—need to be truthful. While mere “puffing” is not actionable in Texas under the DTPA, special care should be taken when representing that your company provides customizable products or services. One misrepresentation, small or large, can reverberate around a very large community and draw the attention of state and federal agencies.

Our attorneys at our Dallas and Austin offices are here to help you and to answer any of your questions.  You may contact us at info@gstexlaw.com.

Legal Disclaimers

This blog is made available by Gerstle Snelson, LLP for educational purposes and to provide general information about the law, only.  Neither this document nor the information contained in it is intended to constitute legal advice on any specific matter or of a general nature.  Use of the blog does not create an attorney-client relationship with Gerstle Snelson, LLP where one does not already exist with the firm.  This blog should not be used a substitute for competent legal advice from a licensed attorney.

©Gerstle Snelson, LLP 2022.  All rights reserved.  Any unauthorized reprint or use of this material is prohibited.  No part of this blog may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage or retrieval system without the express written permission of Gerstle Snelson, LLP.