According to research conducted by the Autonomous University of Baja California[1], content creators or influencers have an important role in the way contemporary society and their consumption habits relate to. The youth represents 35% of users with internet access[2], who rely on influencers recommendations when it comes to lifestyle, and shopping.
This generates a business attraction for trademarks and businesses that seek to place their products or services within reach of their target audience, where all the traffic is generated. However, this information is often not reliable and it can be manipulated, being necessary to ensure that it complies with the Advertising Law.
In this regard, on August 21, the Consumer Protection Federal Agency (PROFECO) published in Mexico’s Official Gazette, a document entitled “Advertising Guide for Influencers“,[3]which addresses the scope of advertising that these Content Creators make on social networks. Although this document has no direct binding force for users of the advertising system, it does establish what are the suggested good practices in the industry for influencers or content creators.
It is important to note that this initiative by PROFECO is in line with the guides prepared in 2019 by the Federal Trade Commission (FTC) of the United States and by Peru’s National Consumer Protection Authority (INDECOPI), where the possible sanctions and corrective measures were also made visible. Special mention should be made to an interesting Code of Conduct on the use of influencers in advertising, developed in Spain in 2021, which has already entered into force.
When it comes to Mexico, such guide is more general, since it was prepared with the intent that influencers can understand it and adapt its content in order to comply with the provisions of the Federal Consumer Protection Law, without the need to sanction them directly for no compliance.
Within the standards established by the guide, it is highlighted that the content generated by influencers on social networks or digital platforms provides information or recommends goods and services; therefore, they are considered advertising and shall be transparent, truthful, verifiable, and exempt from misleading or confusing the public, since they influence the public’s consumption decision, and this is precisely what encourages companies (“trademarks”) to collaborate with influencers.
Following the suggestions made by Advertising Agencies worldwide and digital platforms’ Terms and Conditions, this guide recommends using the hashtags #Advertising, #PaidAdvertising, or #SponsoredBy. This applies to cases when the remuneration for influencers for advertising is not economic but made through an event invite or gifts, as can be noticed many times in influencers dedicated to Fashion or industries that do their market positioning through events aimed at the consumer public.
Influencers are recommended to review the websites of the promoted trademark or product to verify that it is safe and complies with the regulatory standards and to confirm that the content is truthful, clear, and free of misleading or abusive dialogues.
It is imperative to inform influencers of specific guidelines to be met by certain types of products, such as food and beverages, cosmetics, health services and supplies, or beauty and perfumery products.
Finally, the guideline also considers children and adolescent influencers as subjects of this guide since they also influence the consumption decisions of the target audience. In the light of PROFECO, they will not be exempt from the analysis of compliance with the Law.
The effort of the Consumer Protection Federal Agency with the publication of this guide is valuable since it approaches the main actors and basic rules that all advertising must observe and that, in the long term and in the case of being applied, will benefit consumers who will be able to decide their consumption in a more responsible way and without misleading them. However, no direct sanctions are established for non-compliance with these guidelines, and it is clear that PROFECO is sending a message to the private sector to comply with them. If this does not happen, it will seek their application by the general principles on advertising established in the Law and secondary regulations.
In Jáuregui and del Valle, S.C., we are happy to provide any additional information you may require in connection with the above article.
*This article was drafted by Licenciado Israel Ledesma and Xantil Vega Díaz and may contain personal opinions independently of the law firm for which they work. In case you intend to apply any of the provisions or interpretations mentioned above, we recommend that you consult Jáuregui y Del Valle, S.C. or another qualified labor and tax advisor in a formal manner before doing so.
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[1] https://www.redalyc.org/journal/6379/637968301001/html/
[2] ENDUTIH 2019, IFT.
[3] AGREEMENT announcing the Advertising Guide for Influencers of the Consumer Protection Federal Agency: https://dof.gob.mx/nota_detalle.php?codigo=5699347&fecha=21/08/2023#gsc.tab=0
