The state alleged that Nelson promised to deliver personalized fitness plans with individual coaching to customers, and then failed to deliver. Instead, she created and disseminated generic plans and only gave unsubstantial advice like “you’ve got this babe!” She also did things like charge a shipping fee when she wasn’t actually shipping anything—she delivered the plans via email—and only gave people a portion of their money back when they said they didn’t get what they paid for. Nelson also described herself as an “eating disorder soldier,” which customers said made them believe she had expertise in working with people with eating disorders—to whom she then dispensed harmful advice.
The state sued for up to $1 million in damages.
“To me, the claims are very straightforward,” says attorney Alexandra Roberts, a professor of law and media at Northeastern University, who has published on the law and influencer marketing. “Simply the fact that she explicitly offered and accepted money from thousands of people for specific goods or services and then she did not deliver on those, and she did not give people full refunds when they complained, I just don’t see any possible defense to that.”
The trial was set to go down in March 2023, and then got bumped to mid-May. But just before it was supposed to begin, the state of Texas and Nelson settled, which likely means that Davis is liable for an undisclosed amount of money.
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So what are we to make of this? Can followers (and customers) trust that they have recourse when a person’s “influence” doesn’t pan out? Is there finally a sheriff in town, or are Instagram, TikTok, and YouTube still a retail and advertising wild west?
“It might have been nice to have a case that was a slam dunk case where she gets just absolutely massive amount of penalties and damages,” Roberts says. “And maybe that scares people more than hearing about a case that quietly settled, because we might not know the terms of the settlement. But I think and hope that other fitfluencers would pay attention.”
Here are the three biggest takeaways from the settlement of this fitfluencer lawsuit.
1. Regulators are watching influencers—to an extent
The very fact that the state of Texas took Nelson to court should be a signal that influencers making claims and selling products do not have free rein on social media. Sometimes, they have to face the music, so influencers should familiarize themselves with the laws around advertising and business practices, at the very least. Roberts doesn’t think the fact that this case settled changes that, since it likely means that Nelson is liable for some amount of money.
However, there are only so many attorneys general and FTC employees out there, so consumers can’t necessarily count on the government’s protection.
“Hopefully, it’s going to nudge influencers and the companies that use influencer marketing to pay attention and to fall in line,” Roberts says. “From the other point of view as a consumer, I hope that people hearing about this think ‘Oh, I should really use more caution. There’s nobody looking out for me when it comes to every influencer, every kind of person who posts a lot of social media who seems like they have something cool to offer. I have to be a skeptic before I send somebody my money. Because it’s entirely possible I’ll never get the thing that I was trying to get, or what I get will be radically different and disappointing. And there won’t be that much I can do about it.’”
2. Social media can be the problem, and the solution
The thing that got Texas AGs to pay attention was mass complaints by consumers. How did those complaints come about? All thanks to Facebook. Nelson’s customers created a Facebook community to discuss “business complaints” in 2018. She issued an apology video in 2019, and that’s when she stopped fitfluencing and shifted her brand to Christianity. But all those complaints and the ensuing scandal actually caused regulators to perk up.
Bottom line: If you feel you’ve been scammed on social media, other people probably have been too. So you can use social media to find those people and elevate the issue.
3. Don’t overpromise. And at the very least, right your wrongs
Roberts thinks it’s likely that Nelson may have “painted herself into a corner.” Perhaps she offered plans and then either was unable to fulfill them, or really actually didn’t want to do that. When that happens, Roberts emphasizes that if you course correct—meaning, actually give people their money back, don’t just issue an apology video and pivot to influencing in a sphere where a main tenet is “forgiveness”—you can probably hedge off legal troubles.
“For other fitfluencers who are paying attention, the lessons learned should include not making deceptive claims to induce subscriptions or payment of fees, but also taking ownership of mistakes that you make much sooner,” Roberts says.
But before you get to all that, do not overpromise. Because that’s where you really get in trouble. If you’re creating fitness content online, what is it that you really want to do? Do you want to keep making videos? Do you want to start including products? Do you want to start selling your own plans? If you’re promising to create “custom workout plans” and “personalized feedback”—like so many programs these days—this settlement shows that not delivering, or passing off generic content as personalization, could have serious consequences.
It can be seductive to try to monetize a following of people that hey, seem to really like you! But if Brittany Dawn Nelson is any example, proceed with caution, and an understanding that you are beholden to the law, and to treating those followers right.
