The Directorate-General for Competition, Consumer Affairs, and Fraud Prevention (DGCCRF), recently released a report on influencer practices. Findings stated that among some 60 targeted agencies and influencers involved in the promotion of cosmetics, food supplements, ‘slimming' programmes, or online trading and betting services, 60% did not comply with advertising rules.
As the use of influencers to promote products increases in popularity, and following clampdowns in the US and Australia last year, the DGCCRF has initiated new procedures, so that the those flouting the laws are strictly scrutinised and sanctioned.
Depending on the gravity of the offence, investigations will be followed up on with anything from a warning to the transmission of an offence report to the public prosecutor. Misleading commercial practises, such as concealing the commercial nature of a publication, can result in a two-year prison sentence and a fine of up to €300,000.
What is influencer marketing?
In ‘The Regulation of Social Media Influencers’ (Gotanta and Ranchordás, 2020), influencer marketing is described as: “A marketing technique which relies on the endorsement of information by trusted individuals within small communities or networks based on mutual trust and repeated interactions. The most important aspect of modern influencer marketing remains the ability for content creators to monetise content on social media.”
However, Dr. Mark Tallon, managing partner of food-law consultancy Legal Foods, points out that without an official legal definition attached to influencer marketing, it can be difficult to regulate.
“The ASA in the UK has now its own definition of an influencer, which is '… anyone who has been paid by a brand to advertise a product on their own social media, because of their social media influence’," he says.
“The issue here is it suggests the scope covers only those that are paid and no clarity is given as regards this meaning paid in cash or goods or both. Of note, they do state that influencers should make clear that any paid promotions are clearly defined as ‘adverts’.”
Several high-profile cases in recent years – such as Kim Kardashian promoting a morning sickness drug - have highlighted the potential risks of influencer marketing, including issues like fraud, deception, and misinformation.
This type of marketing is particularly contentious in the nutrition industry as it frequently involves the promotion of products or services that may have not been scientifically proven to be effective or safe for consumers. There are growing concerns that nutrition industry influencers might promote various supplements, diet plans, and other products that claim to provide significant health benefits but are not supported by rigorous scientific research.
Tallon adds: “Where a food may have medicinal properties then this may place the influencer at greater risk of prosecution. Advertisement and promotion of a medicine is illegal whether paid for or not and we have seen in the case law (C-421/07), journalists are found liable for such promotion despite no connection to the owner of such medicines.
“An example from the food industry is influencers marketing CBD-type products. We see lots of professionals making claims about anti-anxiety and helping them reduce sleep medication etc. These are medical claims and could result in criminal prosecution of the influencer and brand owners.”
Majority flouting rules
The DGCCRF has been conducting surveys to monitor the commercial practices of influencers and compliance with consumer protection provisions for several years.
The authority controlled more than sixty influencers and agencies since 2021. They found that 60% of influencers were not adhering to rules relating to the transparency of the commercial nature of their publications.
It was found that some deceived consumers about the health benefits or properties of the products sold, through false anti-covid claims or making false ‘organic’ or ‘natural’ claims.
Tallon said: “The position of France recognises requirements that have been in law since 2006 via the nutrition and health claims regulation. The regulation relates to ‘all nutrition and health claims made in commercial communications’.
“The scope of the term ‘commercial communication’ is broad-based on settle case law and in essence, a communication becomes commercial when it is for a financial consideration. Now, this does not just mean cash, it can mean goods and similar financial incentives.
“This is why many ‘influencers’ believe they don’t form part of a business as they may not consider themselves employees and as such can say what they wish. However, in the eyes of the law if they receive cash, goods or other financial benefits for the promotion of a product they must follow the health claims regulation rules."
The DGCCRF recommends, above all, that consumers be vigilant about ads offered on social networks and promoted by influencers.
A spokesperson for Hoozu, an influencer marketing agency, states: “The influencer marketing industry will need to treat the tightening of regulation with the utmost severity.
“Influencers have a responsibility to be honest, accurate, safe, professional, and ethical when promoting products, especially when it comes to nutrition or health products.
“They should be transparent about their relationship with the brand and about their experience with the product including any potential side effects or limitations; They shouldn’t make any claims themselves - any claims should be accurate and backed by science; If there are any potential risks associated with the products, this should be added into the content as a disclaimer.”