False social media photos could harm more than an eatery’s reputation

Restaurants serving up stock photos could violate deceptive advertising laws.

Restaurants serving up stock photos could violate deceptive advertising laws.

An interesting recent article on the use of stock images by restaurants to suggest that food being served in the photos is actually their own caught our creative law firm’s eye this week. Catching the eye of social media users has become a critical requirement for chefs and brand marketers of all kinds in this digital age, so we thought a post on the legal ramifications of such stock photo usage might be helpful.

The usage we’re talking about is not that of working with professional photographers and food stylists to present one’s own product in the best possible light. A deceptive photo might still present some legal issues in that context, especially where digital retouching, compositing, and other post-production techniques are employed. But the issue here is different. Salon’s example is that of a diner that offers griddle cakes on its menu but promotes itself using a stock photo of someone else’s pancakes. Would consumers skimming social media (often the basis for decisions about which restaurant to choose) even notice that “the pancakes on the photographed plate look a little too fluffy compared to the diner-style griddle cakes . . .” served by the subject restaurant? And if they don’t notice, does it really matter (assuming that the diner in question does indeed serve fluffy griddle cakes)?

Stock photos can, of course, be used in non-deceptive ways. For example, a travel website promoting trips to Italy might display a stock image of Florence’s cathedral, the Duomo. But what if the itinerary included only Pienza and its smaller Cathedral of Santa Maria Assunta? Still magnificent. Just not what you’d expect to see in Florence.

Legal Background
The answer from a legal perspective is that it does indeed matter. Consumer protection laws prohibit deceptive advertising practices like passing off one brand’s goods as those of another or failing to disclose a paid relationship between one’s goods or services and an endorser. Section 5(a) of the Federal Trade Commission (“FTC”) Act, 15 U.S.C. § 45, declares that “unfair or deceptive practices in or affecting commerce” are unlawful. The FTC is “empowered and directed to prevent persons, partnerships, or corporations” from engaging those practices. Most states impose the same or similar prohibitions.

No specific FTC regulations govern stock photo use by social media marketers. Still, the “Commission examines the overall net impression left by an ad and considers whether at least a significant minority of reasonable consumers would likely interpret the ad to assert the claim.” Marketers are responsible for all the claims in an ad—not only for what the ad actually says, but also for what it shows or implies. And the FTC has made clear that it not only views social media as advertising but that it seeks to deter deceptive social media marketing practices by aggressively pursuing noncompliant brands and companies.

Would the FTC bring an enforcement action against a restaurant based on stock media content that did not reflect the actual menu items? Several years ago, Consumer Reports compared fast food orders with menu photos. While the burgers and burritos purchased hardly matched their pictures, an FTC spokesperson commented that the “commission is unlikely to take law-enforcement actions in cases where consumers can easily evaluate the product, it’s inexpensive, and it’s frequently purchased.”

Since that time, however, FTC enforcement has increased right along with the rise of influencer marketing. In 2017, the Commission brought its first-ever complaint against individual social media influencers and sent warning letters to 21 others. Creative agencies and their brand clients should fully understand the applicable regulations. Comprehensive policies covering the use of stock images, online reviews, endorsements, and other aspects of social media marketing are a recipe that restaurants and other marketers should follow. We are happy to discuss and assist with the legal aspects of online marketing content.

Dane Johnson