Gymshark is the latest apparel brand to face a class action over undisclosed influencer marketing, following suits against Revolve and Alo Yoga – but this complaint goes further, targeting exclusivity clauses that allegedly hid commercial ties between the brand and its creators.
Gymshark faces a proposed class action that alleges it hid paid influencer marketing behind posts that appeared to be authentic recommendations. Filed June 16, 2026, in the U.S. District Court for the Southern District of New York, the suit by Florida resident Mihaela Lupea claims the alleged disclosure failures went beyond individual posts and extended to exclusivity clauses in creator contracts.
Mihaela Lupea filed Lupea v. Gymshark USA, Inc. on behalf of a proposed nationwide class of U.S. and Canadian consumers. The complaint alleges Gymshark relied on fitness influencers across Instagram, TikTok and YouTube who were compensated through direct payments, free product and affiliate commissions, while disclosures were either missing or placed below the captions “see more” break.
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The complaint also focuses on contract terms.
It alleges some creators were bound by exclusivity provisions that barred them from endorsing competing apparel brands, while consumers were not told about those commercial relationships. The lawsuit argues that a creator who appears to prefer a brand on their own, but is contractually barred from mentioning a rival, is not making an independent recommendation. Alongside a “price premium” theory, the complaint argues that undisclosed endorsements can look more authentic and may draw higher engagement, letting a brand charge more than it could with clearly labeled advertising.
What does the US regulator say?
The Federal Trade Commission’s endorsement guidance says a material connection between a brand and an endorser must be disclosed clearly and conspicuously, but the FTC Act does not give consumers a private right of action. Plaintiffs instead bring cases under state consumer protection laws, here New York General Business Law Section 349, and add claims such as unjust enrichment.
Disclosure training becomes the new compliance line of defense
Brands have also moved to formalize disclosure training. BBB National Programs’ Center for Industry Self Regulation launched the Institute for Responsible Influence in April, building on the National Advertising Division’s 2025 Influencer Trust Index, which found that transparency and certified disclosure training correlate with greater consumer confidence in influencer recommendations, according to BBB National Programs.
European regulatory context: stricter platform duties and joint brand–influencer liability
The EU’s Unfair Commercial Practices Directive bans hidden advertising, and the Digital Services Act requires platforms to make sponsorship status identifiable in real time. These rules operate alongside the EU’s separate consumer protection and advertising laws. Enforcement runs through national authorities such as France’s DGCCRF, and liability can attach to both brand and influencer.
For brands, the practical takeaway is broader review, not just caption checks. Monitoring individual posts for a missing #ad may not be enough if plaintiffs also examine exclusivity clauses, payment structures and campaign controls. Platform disclosure tools, such as Instagram and TikTok paid partnership tags, plus clear contractual requirements and enforcement mechanisms, are increasingly part of the standard playbook.
