Regulators are shifting attention from whether brands used AI to whether synthetic content misleads audiences about identity, experience, authorship or product claims.
The legal treatment of AI-generated marketing content has moved on quickly since earlier guidance on GenAI, influencers and liability. According to the updated JD Supra analysis, the central issue for brands, agencies and creators is no longer whether artificial intelligence was used at all, but how it was used, what it changed and whether audiences could be misled about authorship, authenticity or experience.
The article divides AI-driven influencer content into three broad categories. The first is AI-assisted use by a real influencer, where tools help draft, edit, translate or produce material but the human remains the speaker. The second is an AI replica of a real person, such as voice cloning or synthetic video that depicts an identifiable individual saying or doing something they never recorded. The third is a fully synthetic influencer, meaning a fictional persona created by software and presented as a social media presence.
That distinction matters because, under federal advertising law, the core questions remain deception and substantiation rather than the mere presence of AI. The FTC continues to apply Section 5 of the FTC Act to AI-enabled conduct, and the article notes that claims remain unlawful if they are likely to mislead reasonable consumers in a material way. Objective assertions still need a reasonable basis before publication, even if a generative model produced the wording. In practice, that means an AI tool cannot supply evidence where none exists.
The FTC’s recent enforcement posture also appears to have become more selective. The agency has said it is applying existing fraud and deception law to AI rather than creating a separate AI regime, while still acting against unsupported claims about AI products themselves. The article points to the Workado matter as an example of the FTC challenging unsupported accuracy claims, and to the reopening and setting aside of the earlier Rytr order as evidence that the agency is more cautious about restricting AI tools simply because they could be misused downstream.
The Endorsement Guides remain central for influencer campaigns. As the article explains, the FTC defines an endorser broadly enough to include virtual influencers, and endorsements must reflect genuine opinions, findings or experience. A message may not be distorted by being reworded or presented out of context. If an endorsement implies product use, the endorser must actually have used the product. Advertisers, agencies and endorsers can all face liability if claims are misleading or if material connections are hidden.
That framework becomes especially important where AI changes the identity or apparent experience of the person speaking. Using a likeness or image of someone other than the actual endorser can be deceptive if it misrepresents a material attribute. Likewise, consumer testimonials about product performance still need proper substantiation, and the FTC has made clear that testimonials alone are not scientific evidence.
The article also highlights a series of newer rules that tighten the practical risks around AI-generated promotion. The FTC’s Consumer Reviews and Testimonials Rule, which took effect in October 2024, prohibits businesses from writing, creating or selling fake consumer or celebrity testimonials that materially misrepresent whether a person exists, used a product or had the experience claimed. The rule does not mention AI expressly, but the FTC said in announcing it that AI-generated fake reviews fall within its scope. Because it is a trade regulation rule, it also opens the door to civil penalties where the prohibited conduct was known or should have been known.
On impersonation, the FTC’s existing rule covers government entities and businesses, but not private individuals. The agency has considered expanding the rule to cover personal impersonation and, separately, has begun asking whether platform tools that aid impersonation scams should be addressed. For marketing teams, the practical point is that unauthorised deepfake endorsements remain vulnerable under other laws even where the FTC’s impersonation rule does not yet reach them.
State law is becoming just as important. Utah has codified the principle that GenAI is not a defence to a consumer protection violation. New York now requires conspicuous disclosure when an advertisement contains a synthetic performer, making it the first state to impose a specific disclosure duty for AI-generated performers in advertising. California’s AI Transparency Act, meanwhile, now applies to large GenAI providers and requires provenance disclosures in AI-generated image, video and audio content. Although that California law targets providers rather than advertisers, its metadata and provenance rules may still affect campaign assets that are distributed through platforms.
The article also points to broader rights-of-publicity and digital-replica developments. New York broadened its protections for digital replicas of deceased performers, while Tennessee’s ELVIS Act extends publicity protection to voice and voice simulations. California and New York have both added contract limits around digital replica rights, and Illinois has updated its publicity law and digital voice protections. These changes matter because a campaign built around a cloned voice or synthetic likeness can raise publicity, consumer protection and contract issues at the same time.
The article says the EU AI Act adds another layer for campaigns with international reach. Its transparency obligations, including deepfake labelling duties, have now taken effect. For brands running cross-border campaigns, that means the compliance question may be different in the United States, in individual states and in the European Union, even where the underlying creative is the same.
Taken together, the developments point to a single conclusion: legal risk turns less on the fact of AI use than on the effect of that use. If AI creates or imitates a real person’s speech, experience or likeness, or if it materially changes how consumers would understand the endorsement, the legal exposure increases sharply. Brands and agencies that address disclosure, substantiation, likeness rights and platform labelling at the planning stage are in a stronger position than those that treat AI as merely a production tool.
Disclaimer: This content is intended for informational purposes only. Readers are advised to exercise their own judgement, conduct due diligence, or consult a qualified expert before acting on any information provided.
