Consumer affairs: Influencer marketing sweep results published

National authorities check whether influencers are complying with established rules when promoting products or services

The European Commission has recently published the findings of a ‘sweep’ examining social media posts from influencers. This sweep was conducted by the European Commission in partnership with national consumer protection authorities from 22 member states, Norway and Iceland. The primary aim of the sweep was to verify whether influencers are disclosing their commercial content as required under EU consumer law.

The Malta Competition and Consumer Affairs Authority’s Office for Consumer Affairs, which is Malta’s single liaison office and competent authority for this network, also took part in this common action.

EU consumer law mandates transparency in commercial communications. In their posts, influencers must not mislead consumers with false or untruthful information regarding promoted products or services covered by the Unfair Commercial Practices Directive.

Any promotion of a brand’s products or services in a post that provides the influencer with revenue or other benefits must be clearly disclosed as advertising activity.

With regards to influencer marketing, Commissioner for Justice, Didier Reynders, said: “The business of influencers is thriving, and a lot of consumers – often young people or even children – trust their recommendations. This business model, however, also comes with legal obligations. Influencers too must follow fair commercial practices and their followers are entitled to transparent and reliable information.”

The screening exercise checked posts of 576 influencers published on major social media platforms. Eighty-two of the influencers sweeped had over a million followers, 301 over 100,000, and 73 influencers had between 5,000 and 100,000 followers. Several influencers were active on different social media platforms: 572 had posts on Instagram, 334 on TikTok, 224 on YouTube, 202 on Facebook, 82 on X (formerly Twitter), 52 on Snapchat, and 28 on Twitch.

The main sectors of activity concerned are, in decreasing order: fashion, lifestyle, beauty, food, travel and fitness/sport. Of the influencers screened, 119 promoted “unhealthy or hazardous activities”, including junk food and alcohol, cosmetic treatments, gambling or crypto trading.

The sweep revealed that nearly all (97%) of these influencers published posts with commercial content but only 20% systematically disclosed this as advertising.

Another interesting finding was that 78% of the verified influencers were exercising a commercial activity; however, only 36% were registered as traders at national level.

Moreover, 38% of the influencers checked did not use platform labels intended to disclose commercial content, such as the ‘paid partnership’ toggle on Instagram. Instead, these influencers opted for different wording, such as ‘collaboration’, ‘partnership’ or generic thanks to the partner brand.

Other findings showed that only 40% of the checked influencers made the disclosure visible during the entire commercial communication. With regard to the influencers who endorsed their own products, services or brands, 60% did not consistently, or at all, disclose advertising.

As a result of this exercise, 358 influencers were identified for further scrutiny. National authorities will now get in contact with these influencers to ensure compliance with the established rules. If necessary, additional enforcement measures may be pursued in accordance with national procedures.

The outcome of the sweep will also be incorporated into the Digital Fairness Fitness Check, launched in Spring 2022 by the European Commission. The Fitness Check evaluates the Unfair Commercial Practices Directive, the Consumer Rights Directive and the Unfair Contract Terms Directive.

Following this evaluation, it will be determined whether the current legal framework is adequate in dealing with consumer protection issues, such as dark patterns, personalisation practices, influencer marketing, contract cancellations, marketing of virtual items and the addictive use of digital products.

Sweeps are coordinated by the European Commission and carried out simultaneously by national enforcement authorities within the Consumer Protection Cooperation Network. Sweeps operate in a two-step action process.

The first step is the screening of websites to identify breaches of consumer law in a given online market and the second step is the enforcement in which national authorities ask traders to take corrective action.

Sweeps have been carried out every year since 2007 and in the past five years were conducted in the following areas: delivery and right of withdrawal (2019); consumer scams related to the COVID-19 pandemic (2020); misleading sustainability claims (2020); consumer credit (2021) and online consumer reviews (2021); car rental intermediaries (2022); Black Friday sales (2022), dark patterns (2022) and influencers (2023).