Drunk Elephant Case: FTC Compliance Wake-Up Call for Brands

Introduction

A recent inquiry by the National Advertising Division involving Drunk Elephant provides a useful example of how influencer disclosure practices are evaluated in practice. The matter does not introduce new rules, nor does it signal a sudden change in enforcement standards. Instead, it illustrates how existing disclosure principles are applied when influencer content and product claims are reviewed together.

The case is notable because it reflects how scrutiny often unfolds across multiple dimensions at once. Disclosure, substantiation, and documentation are evaluated in parallel rather than in isolation.

Overview of the NAD Inquiry

The National Advertising Division, which operates under BBB National Programs, reviewed aspects of Drunk Elephant’s social media marketing. The inquiry focused on two areas.

First, the NAD examined statements suggesting that certain products were safe for use by children and tweens. Second, it reviewed influencer content promoting Drunk Elephant products to assess whether material connections were clearly disclosed.

The brand cooperated with the inquiry and agreed to follow the NAD’s recommendations.

Product Safety Claims

Drunk Elephant had stated on social media that specific products were safe for children and tweens. The NAD reviewed the substantiation provided by the brand and concluded that the claims were supported.

While this portion of the inquiry did not result in a finding against the brand, it reinforces an important point. Claims related to health or safety, particularly those involving younger audiences, are likely to receive careful review. Brands must be prepared to explain the basis for those claims if questioned.

Influencer Disclosure Practices

The NAD also reviewed TikTok content created by influencers promoting Drunk Elephant products. In these posts, the issue was not whether the influencers had relationships with the brand, but whether those relationships were clearly communicated to viewers.

In one instance, a disclosure appeared only after expanding the caption, making it easy to miss. In another, a creator who received free products did not include any disclosure at all. The NAD concluded that these disclosures were not sufficiently clear or conspicuous.

The recommendation was straightforward. Material connections should be communicated in a way that viewers can easily notice and understand without additional steps.

Why the Case Matters

The Drunk Elephant matter highlights how disclosure issues are often evaluated.

Scrutiny tends to focus on consumer perception rather than intent. A disclosure that technically exists may still be considered inadequate if consumers are unlikely to notice it. The distinction between paid and unpaid endorsements does not eliminate disclosure obligations when free products or other benefits are involved.

The case also illustrates how self regulatory review functions as an early checkpoint. Addressing issues at this stage can prevent escalation and limit broader exposure.

What Brands Can Take From This Example

The lesson from the Drunk Elephant inquiry is not that standards have changed. It is that expectations are being applied consistently.

For brands managing influencer programs, this reinforces several practical realities:

• Disclosure must be clear in context, not just present somewhere
• Free products can create material connections that require disclosure
• Influencer content is reviewed as part of a broader pattern, not post by post
• Claims and disclosures are evaluated together when scrutiny arises

Programs that rely on informal guidance or inconsistent review often struggle once questions are raised.

Closing Perspective

The Drunk Elephant matter is best understood as a reminder rather than a warning. Disclosure and substantiation standards are well established. What varies is how prepared brands are to demonstrate that those standards were applied consistently.

Brands that treat influencer disclosures as part of a structured and documented process are better positioned to respond calmly when marketing practices are reviewed. Those that do not often face prolonged scrutiny, even when underlying issues are correctable.

‍

‍