Last August 21, PROFECO (“Procuraduría Federal del Consumidor” for its acronym in Spanish) published the “Advertising Guide for Influencers” in a very innovative and visual format, which regulates the content of advertisement that Influencers publish in their social networks.
Nowadays, the most powerful means to reach consumers is through opinions made by influencers in their social networks and other digital platforms regarding certain products or services, however, when they publish content in their social media, they become subjects of legal obligations that must be considered to avoid sanctions by PROFECO. For this reason, the authority has published rules that protect the content of the publications made by Influencers.
Influencers must comply with certain normative rules when advertising content, so that it can be perceived by users and followers as paid or sponsored content by advertising brands. This is the most important rule in the Guide: Influencers must clearly specify that the advertisement they are making of products and/or services is “sponsored” or “paid” by third parties (advertisers).
Other important rules in the Guide for Influencers are:
Always include hashtags in their descriptions, such as #PublicidadPagada, #Publicidad, #OpinionesPersonales, #PatrocinadoPor, among others.
Avoid abusive and misleading descriptions. It is recommended to include warnings for safe use of the product and/or service that is being advertised.
Always specify that it is advertised content, regardless of the format in which the content is included (image, video, audio or lives).
Always place the information in a visible and available location in the advertisement.
Do not place the information with other hashtags or links that make it difficult to identify the advertisement.
Review websites of the brands paying the advertisements to verify that their products and/or services are legitimate and are in accordance with the applicable regulations.
Influencers should ensure that the opinion is limited to their own experience with the product and/or service that they are advertising.
In paid advertisement, Influencers must comply with Article 32 of the Federal Consumer Protection Law, which establishes that all the information directed to consumers must be “clear, truthful, verifiable and free of other forms that may mislead or confuse consumers”, so when uploading paid advertisement or collaboration in social or digital media, they are responsible for complying with this article. Influencers must pay special attention to ensure that the agreements they execute with the advertisers include clauses that release them from any liability for the content of the advertisement of products/services they are doing on their behalf.
While it is true that this Guide establishes important principles to be followed, it does not establish sanctions. We consider that the Guide is a positive milestone, however, it is necessary to implement additional progress to create legal frameworks that provide greater transparency and clarity to all parties involved: advertiser, influencer and final consumer.
FOR FURTHER INFORMATION ON THE CONTENT OF THIS NEWSLETTER, PLEASE CONTACT:
Gustavo Alcocer manages the Corporate and Commercial Law Group at OLIVARES, advising domestic and foreign businesses and the owners of those businesses on Mexican and cross-border corporate and commercial transactions.
Abraham Díaz is a partner and co-chairs OLIVARES’ Privacy and IT Industry groups and has a wealth of knowledge across all areas of intellectual property (IP), with a focus on copyright, trademarks, unfair competition, litigation, licensing and prosecution matters.