UNJUST ENDORSEMENT

Celebrities wield immense influence in modern society and sometimes harness that power to endorse questionable products and services to consumers. This practice has sparked widespread controversies recently whenever celebrities have endorsed fraudulent and/or destructive enterprises, such as the Fyre Festival, FTX cryptocurrency exchange, and JUUL e-cigarettes. Despite the far-reaching consequences for consumers and society of such endorsements, current legal frameworks largely shield celebrity endorsers from liability. This Article defines this pressing phenomenon as “unjust endorsement”—celebrities exploiting their fame, influence, and super-spreading power (especially through social networks) to promote dubious and/or defective goods with legal impunity. It reveals the distorted law and economics of celebrity endorsements and exposes their grave psychosocial implications, especially when targeted at vulnerable consumer populations such as children and adolescents. After examining the inadequacies of preexisting liability mechanisms, this Article proposes a novel policy approach to curbing unjust endorsement based on the law of unjust enrichment. Building on interdisciplinary scholarship in psychology, communications, and cultural studies, this Article proposes that celebrities’ enrichment from promoting dubious or defective goods and services should be considered “unjust” and subject to disgorgement. Consumers influenced by celebrities’ misrepresentations (however innocent) should benefit from these gains, especially in cases where the primary offenders—advertising brands—are insolvent or otherwise judgment-proof. This Article proposes a disgorgement-based remedy that is fair, efficient, and finely and equitably balances the interests of consumers with other social principles, such as those of caveat emptor and free speech.