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In brief

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.

Recommendation

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.

Author

Daniel Villanueva Plasencia is a partner in the Intellectual Property Practice Group at Baker McKenzie Guadalajara. With over 15 years of experience, he specializes in data privacy, information security, and cybersecurity matters. His expertise extends to regulatory issues related to information technologies and consumer protection, as well as intellectual and industrial property – with a particular focus on digital environments, including the use and licensing of trademarks, patents, and copyrights. Daniel holds the Certified Information Privacy Administrator (CIPM) recognition from the International Association of Privacy Professionals. In 2022, Daniel was honored with the Innovation and Best Practices in Data Protection award by the National Institute of Transparency, Access to Information and Protection of Personal Data (INAI). Additionally, Daniel, obtained a certification as an Artificial Intelligence Compliance Officer from NYCE. Prior to joining the Firm, Daniel was a founding partner at a local firm in Guadalajara, Jalisco. Over the last eight years, Daniel has also been an instructor for the intellectual property class at the Tecnológico de Monterrey, one of Mexico's most prestigious universities.

Author

Carlos is a partner in Baker McKenzie's North America Intellectual Property Practice Group. He provides strategic consulting on copyright, distinctive signs, domain names, trade secrets protection, unfair competition prevention, branding, advertising and protection in the digital environment, and privacy issues litigation. Carlos also implements and develops anti-piracy actions, handling undercover investigations and operations against intellectual property rights counterfeiting matters.

Author

Carlos is a partner in Baker McKenzie's Information Technology and Communications Practice Group in Mexico City, and the head of the Firm's Technology, Media and Telecommunications (TMT) Industry Group in Mexico. A Certified Information Privacy Manager (CIPM) by the International Association of Privacy Professionals (IAPP), and an award winner of national accolades on digital transformation and legal innovation, Carlos is recognized by Chambers and Partners, Legal 500 and other international publications as one of the country's leading TMT lawyers. Carlos' strong specialization and multidisciplinary consultancy background (prior to joining Baker McKenzie, he led the TMT legal practice of PwC) and superior legal tech law knowledge, are the foundation of Carlos' unique vision and problem-solving skills, which allows Carlos to assist clients to identify and address corporate, commercial, technical, compliance, tax, regulatory, strategy, expansion and policy issues that arise in different phases of complex technology projects.

Author

Marina Hurtado leads the Baker McKenzie's Patent Practice in Mexico. With more than a decade of experience handling sophisticated intellectual property matters, she advises on a broad range of areas including prosecution, licensing, and litigation of patents, utility models, industrial designs and trademarks. In addition to this, Marina has extensive experience in areas of Health, Advertising and Consumer laws. In October 2019, Marina was appointed by the Secretary of the Mexican Ministry of Foreign Affairs, as ad honorem external advisor on intellectual property issues to collaborate in the development of IP public policies in Mexico.

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