South Dakota Gov. Kristi Noem Slapped With Lawsuit Over Bizarre Video Promoting Texas Dentist

South Dakota Gov. Kristi Noem (R) caused a stir on social media Tuesday when she posted a video promoting a Texas dentist, catching the attention of an advocacy group that has now filed a lawsuit against her, alleging the video was a false and deceptive advertisement.

The nearly five-minute video was posted to Noem’s Facebook, Instagram (including Stories and Reels), X (formerly Twitter), and Truth Social accounts, and features Noem describing how she had knocked out several teeth during a bicycling accident several years ago, and had been unhappy with how they had been fixed, until she went to Smile Texas and they were “absolutely phenomenal” and “finally gave me a smile that I can be proud of and confident in.”

There are dentists in Noem’s home state — the South Dakota Dental Association’s website states it represents “nearly 500 dentist members and more than 500 allied dental staff members statewide” — so it’s not clear why the governor decided to travel nearly 1,200 miles from the state capital in Pierre to the Sugar Land, Texas location of Smile Texas.

Noem is a former beauty pageant winner (crowned South Dakota Snow Queen in 1990, the year she graduated high school), and Smile Texas’ website proudly touts they are the “Official Dentists of the Miss Texas USA Pageant,” so maybe her local dentists just didn’t offer enough pageantry-style pizzazz.

Or maybe some money or free dental services exchanged hands.

What exactly happened to lead a sitting governor to post a video promoting out-of-state cosmetic dentistry services is not clear, but what is clear is that Noem never mentioned or included in the caption any disclosure that this was an “#ad” or otherwise paid promotion, in violation of the Federal Trade Commission’s (FTC) guidance to social media influencers regarding paid endorsements and advertisements, requiring such posts to include “simple and clear language” to disclose the promoted nature of the post, like “advertisement,” “ad,” or “sponsored.”

For Travelers United, a consumer advocacy nonprofit focusing on travel issues, it just didn’t pass the smell test, and the organization sued Noem in a District of Columbia court Wednesday, as first reported by New York Magazine’s Olivia Nuzzi.

Travelers’ United’s complaint accuses Noem of violating the District of Columbia Consumer Protection Procedures Act (CPPA), alleging that her “undisclosed advertisements” constituted an “unfair or deceptive practice”:

Someone with a very busy job does not take time off of that job to make a free advertisement for medical services in another state. There are many dentists and cosmetic dentists in South Dakota. No one with an extremely important job in the South Dakota would fly to Texas to receive dental treatment and then sit in that office and film an advertisement without some form of compensation. Kristi Noem acted here as an influencer. She likely either received free dental care in exchange for this advertisement, discounted dental care in exchange for this advertisement or she was paid and received free dental care for the advertisement. Unfortunately Noem did not mark this as an “Ad” or “Advertisement” when posting so she is participating in an unfair and deceptive practice.

Noem “is the Governor of South Dakota for a living but seems to have taken up work as a social media influencer as of March 12, 2024. It is not uncommon for social media influencers to work part-time as influencers while holding another job,” the complaint continued, arguing that she benefited “both physically (a new smile) and financially (she was either paid or received free or reduced cost medical services in exchange for the advertisement).”

The complaint included a full transcript of Noem’s video, along with screenshots from her posts on her different social media accounts that showed it was filmed at the Smile Texas office and included the Smile Texas logo, and a sampling of comments from her followers wondering why she had not disclosed this was “an influencer ad.”

Noem should have known better, the complaint argued:

Governor Kristi Noem is a smart woman who knew that laws apply to advertising disclosure on social media. Even if she wanted to say she did not know that laws applied to ads on social media, this was clearly pointed out to her after she posted. Many consumers in the comments pointed out that she should have written “Ad” or “Advertisement” to be legally compliant but she never fixed any of her posts promoting Smile Texas. Travelers United would like to make clear this lawsuit is merely a lawsuit over the lack of advertising disclosure. Governor Kristi Noem has had many accomplishments in office and Travelers United hopes that after correcting her social media posts she continues to do her job of making her great state even better.

Travelers United is asking for an order requiring Noem to comply with the CPPA, an undetermined amount of statutory and punitive damages, as allowed under the CPPA statute, plus attorneys’ fees and costs.

Mediaite reached out to Lauren Wolfe, the attorney for Travelers United who filed the lawsuit. Wolfe acknowledged that she did not as of yet have the direct evidence that Noem had been paid or received free or reduced dental services in exchange for the social media posts, but there did not seem to be any other logical explanation.

“It’s possible there there is none,” said Wolfe, “but it doesn’t make any sense otherwise…We look forward to seeing that information in court.”

She pointed to the simplicity of the FTC guidance on this issue, noting that “any influencer simply needs to disclose when they are posting an advertisement;” it could be just posting “Ad” at the beginning of a post, and then “that’s it, then they’re compliant.”

Wolfe said it was unfortunate there had “not been a lot of enforcement on influencer law,” and said Travelers United was working to change that with this and another lawsuit the group had filed, regarding an Instagram influencer promoting multiple brands.

“This is an issue we care about,” said Wolfe, “We want to make sure influencers can’t make up false claims about themselves, can’t make up false claims about products — that’s what our lawsuits have been based on.”

Regarding the specific amount of damages, Wolfe pointed to a section of the CPPA that provided for a penalty of “[t]reble damages, or $1,500 per violation, whichever is greater.” An interesting wrinkle is that this section does not seem to have been fully tested in court yet regarding influencers, so it’s not totally clear how a “violation” would be calculated, whether that would be per post or per view, but Wolfe’s analysis was that the minimum threshold would be per post, and Noem’s massive follower count could end up factoring into how punitive damages were assessed.

“Our goal is just to get her to correct the posts, not any sort of massive penalties or anything like that,” Wolfe emphasized.

Read the full complaint below:

Travelers United v. Kristi Noem by Sarah Rumpf on Scribd

–