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Nowadays, it is difficult to find someone that has not heard about influencers, the trade of choice for the millennial generation. These role models with legions of followers have a major capacity to influence economic behavior. Consequently, influencers have become one of the key assets for promoting many commercial brands, which are increasingly abandoning traditional advertising media.

In this context, on January 23, the United Kingdom’s Competition and Markets Authority (“CMA”) published a guide for influencers to ensure compliance with consumer protection law. The CMA’s rationale for preparing this guide is that people need to know if influencers have been paid, incentivized or in any way rewarded to endorse or review something in their posts. Otherwise, influencers could be misleading their followers in breach of UK consumer protection law, which could lead to the CMA and other competent authorities taking enforcement action.

The CMA’s guide establishes the following criteria to be applied by influencers and brands that wish to avoid misleading their followers and incurring liability:

  1. Say when you have been paid, given or loaned things. The influencer must make it clear when the product or service published has been paid for or given as a gift by the brand.
  2. Be clear about your relationship with a brand or business. The CMA establishes that the relationships an influencer has or may have had with brands within a reasonable time limit (over the last year) need to be clear.
  3. Do not be misleading. Influencers cannot give the impression that they are consumers when they are actually acting for their own business purposes or on behalf of a brand or other business. They also cannot say or imply that they have bought the product when in fact it has been given to them as a gift, or say that they have used the product when they have not.

The CMA also offers advice to comply with the regulations, such as use of messages that are: a) transparent, easy to understand, unambiguous, and timely, and prominently highlight that the publication is a sponsorship; and b) apparent without the need for people to click for more information, no matter what type of device is being used to view the post.

As for the specific message that should be used, the CMA considers that there is no single way of explaining your relationship with a brand. The use of hashtags such as #ad, #adver or the “Paid Partnership” tool on Instagram are some examples highlighted. However, these messages must appear in a clear and prominent manner, not hidden at the end of or among other text and hashtags, or using other formulas that do not make it clear that it is a paid advertisement (e.g., #collab, #spon, etc.)

In conclusion, the CMA has followed the line adopted by the UK’s Advertising Standards Authority, which has already prepared a guide for influencers on unlawful advertising. In doing so, the CMA has sent a clear message that misleading consumers can lead to the corresponding fines for influencers, along with their representatives and even the brand that has been unduly promoted.

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Graduada

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alicia.costas@cuatrecasas.com

Socio

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albert.agustinoy@cuatrecasas.com

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