On 21 August 2023, the decree by which the Influencers Advertising Guide of the Federal Consumer Protection Office (PROFECO) was published, which is a reference tool for content creators, influencers, and the general public for due compliance with the provisions on advertising established in the Federal Consumer Protection Law.
The Federal Consumer Protection Law establishes that the advertising of goods or services disseminated by any means or form must be truthful, verifiable, and free of texts, dialogues, sounds, images, trademarks, designations of origin, or other descriptions that induce or may induce error or confusion because they are misleading or abusive. Consequently, PROFECO published this Guide in order to create a culture of compliance with the provisions on advertising and to promote responsible consumption, and to ensure fairness, certainty, and legal certainty in consumer relations.
The Influencers Advertising Guide states that anyone who provides information or recommends a product, good, or service through digital platforms or social networks generates advertising, including not only providing this information through paid collaborations but also sharing experiences about invitations to events or trips, or about goods or other non-economic benefits received as gifts. This is because these publications influence consumers’ decisions to purchase such goods or services. This confirms that using influencers should be considered as advertising for all legal purposes, at least in terms of consumer protection.
The Guide provides the following suggestions for publications on digital platforms and social networks:
- Include the following tags in a visible place to inform if there is any type of commercial relationship with the trademark they recommend: #PaidAdvertising, #Advertising, #PersonalOpinions, #SponsoredBy.
- Do not include misleading or abusive descriptions.
- Include warnings for the safe use of the products, goods, or services, as well as restrictions or prohibitions for consumer safety or health reasons.
- Ensure that the opinion is limited to one’s own experience with the products, goods, or services.
- Check that the trademarks, goods, or services are safe and comply with all the corresponding standards.
Although the Guide is a non-binding consultation tool, it is recommended that content creators and influencers, as well as companies and trademarks that collaborate with them, check that their agreements, content, and publications comply with the provisions of the legislation on advertising and this Guide to avoid conflicts and sanctions from PROFECO. It should be noted that PROFECO carries out frequent monitoring and surveillance, which, together with consumer complaints, allows it to initiate sanctioning procedures for misleading or abusive advertising within the regulatory framework of the Federal Consumer Protection Law, regardless of the fact that the Guide is not yet binding.