Legal Action Against Health Influencers on the Rise: An Overview of Cases Involving Liver King and F-Factor

Joe Loney became captivated when he stumbled upon Liver King, a well-built fitness influencer renowned for his consumption of raw organs. Loney firmly believed that by adhering to a primal diet and engaging in rigorous workouts, he could achieve a similarly chiseled physique like that of Brian Johnson, the influencer’s true identity. Commencing in 2021, Loney adopted a routine of consuming a nearly raw steak on a daily basis, with only occasional breaks every two to three months.

Then in December the king confessed to his subjects. He admitted in a YouTube video, which now has nearly 4 million views, that he consumed about $11,000 worth of steroids a month. Next, he was hit with a $25 million lawsuit alleging that he used deceptive marketing for his Ancestral Supplements products, which he says have generated more than $100 million a year.

“I felt betrayed,” said Loney, who was not part of the now-discontinued lawsuit. “I probably made at least 10 or 20 comments on his videos saying, ‘When are you going to stop using steroids?'”

Johnson is just one of many health and wellness influencers with millions of followers who are suing over allegedly misleading or false product claims. The lawsuits come as online promoters move from endorsing other companies’ products to creating and pushing their own products. Meanwhile, regulators are taking a closer look at influencer marketing, which is expected to top $21 billion this year, according to an industry report.

In June, the Federal Trade Commission released its first update to its sponsored advertising guidelines in a decade, focusing on influencer marketing. Among other improvements, the update defines a “clear and conspicuous” acceptance notice as one that is “difficult to miss (i.e. easily detectable) and easily understood by ordinary consumers.” The update also says that all parties involved in the marketing campaign can be held liable for violations, including the content creator.

The documentary seems to fill a long-standing need. According to a 2017 study by influencer marketing agency Mediakix, 93 percent of the most followed celebrities on Instagram had not followed the FTC’s endorsement rules at the time.

Even with clearer instructions, it’s still a free-for-all.

Supervision has not kept pace with this growth. For example, according to the US Dietary Supplement Act of 1994, Johnson’s Ancestral Supplements do not need FDA approval before they enter the market.

Turning to the courts

When consumers feel cheated, they can turn to the courts. Last October, a group of women sued wellness influencer Tanya Zuckerbrot and her company, F-Factor, also in New York state court. F-Factor’s clients have included supermodel Olivia Culpo and, according to Zuckerbrot, television journalists Megyn Kelly and Katie Couric.

“What works for me is different than what works for you,” said Christine Whelan, a clinical professor of consumer science at the University of Wisconsin in Madison. “Who can say if the influencer is cheating or if nutritional supplements or meal replacement bars really don’t work? It’s such an amorphous field.”

The plaintiffs in the F-Factor lawsuit alleged that the company’s fiber-rich powders and supplements caused “intestinal blockages requiring emergency surgery, debilitating stomach pains, eating disorders, severe allergic reactions and other serious and permanent injuries.”

Zuckerbrot’s attorney, Scott Haworth, said in an email that “many of the claims” “have been proven false as proven by third-party toxicology testing.” He said the plaintiffs have “not provided a single medical report or evidence of injury. The reason is obvious: the case has no legal or factual basis.” Haworth added that Zuckerbrot is a trained nutritionist. He received his master’s degree from New York University.

McKinsey & Co. According to the US Markets 2022 report, the global wellness market — including nutrition, fitness, sleep and mindfulness — was estimated at $1.5 trillion last year, with annual growth of 5 to 10 percent. was over $450 billion, growing over 5% annually, McKinsey estimates. The company found that influencers are a critical part of the market.

Liver King’s Johnson did not respond to a request for comment on the lawsuit. It was filed in New York state court in December by a consumer seeking to represent an entire class of customers, then voluntarily dropped the suit in March without explanation. The FTC declined to comment.

$300 fitness plans

In February of last year, Texas sued influencer Brittany Dawn Davis, who has more than 1.3 million followers on TikTok. The state alleged he defrauded thousands of customers with his nutrition and fitness plans, which cost between $92 and $300, by promising personalized coaching they didn’t get.

At least 14 of those seeking compensation cited eating disorders in their complaints, saying Davis “offered cardio exercise and low-calorie macronutrient suggestions that would only work for a dieter, not a dieter.”

In June, Davis agreed to pay $400,000 to settle the dispute.

The FTC has filed its own lawsuits. In 2020, it sued Teami LLC, alleging that the tea and skin care company made deceptive health claims and paid social media influencers for endorsements they did not adequately disclose. The team falsely claimed that its teas fight cancer, clean blood vessels, and treat and prevent the common cold, the agency said. The case was settled for $15.2 million.

Whelan, a consumer science professor, predicted more lawsuits against influencers, but said the FTC’s guidance update is a “warning flag” for the industry.

“The justice system is starting to say: Could we use existing regulations to fight the worst criminals?”