The European Fee (“Fee”) is engaged on a brand new EU shopper safety legislation referred to as the Digital Equity Act (“DFA”) to higher shield shoppers within the digital area. The DFA is anticipated to manage, amongst different issues, influencer advertising.
With EU shopper safety watchdogs beginning to carry instances in opposition to corporations whose services or products are promoted by influencers (see for instance right here), the DFA’s provisions could apply not solely to influencers, but in addition to corporations that deploy or use influencers, to make sure that promoting practices are truthful and clear. This weblog publish explores two key points that the European Fee is anticipated to prioritize in its strategy to influencer advertising. It additionally offers a short overview of the French authorized framework on this space, which some anticipate to function a mannequin for the EU’s forthcoming guidelines on this space.
Key Points
The Fee’s Health Verify in preparation for drafting the DFA identifies the next two key points with influencer advertising:
- lack of transparency about paid promotions by social media influencers; and
- security considerations referring to the content material promoted by social media influencers.
The Health Verify contains a number of statistics to display the prevalence of those points. For instance, it mentions that 74% of shoppers reported a scarcity of transparency within the paid promotion of merchandise by social media influencers. The Fee’s complete Shopper Safety Survey revealed in March 2025 additionally reviews that 47% of EU shoppers who participated within the survey stated that when trying to find or shopping for merchandise on-line, they encounter social media “influencers” who seem to have been paid to advertise sure merchandise, however don’t say so clearly. The Health Verify additionally cites a examine that discovered 44% of shoppers have seen influencers selling scams or harmful merchandise.
In keeping with the Fee, these issues stem from a scarcity of particular obligations directed at influencers (similar to which merchandise they could not promote and whether or not or how they have to point out the industrial nature of their content material), but in addition from “authorized uncertainty concerning the relevant guidelines, together with concerning the tasks of different actors within the worth chain, such because the manufacturers whose services are being promoted (apart from that of platforms, regulated inter alia within the [Digital Services Act (‘DSA’)].” The Health Verify states that voluntary codes of conduct for accountable advertising usually are not ample to handle the issue.
This may increasingly recommend that obligations discovered within the DSA, and doubtlessly the forthcoming DFA, could also be imposed not solely on influencers, but in addition on the businesses that have interaction them — and presumably on the platforms the place this content material seems. At present, it stays unclear to what extent the EU’s guidelines on advertising beneath the Unfair Industrial Practices Directive (“UCPD”) — which require promoting to be clearly recognized as such — apply to influencer advertising. Nonetheless, the Fee’s 2021 steerage on the UCPD states that:
“Relying on the circumstances of the case, the breach may very well be attributed each to the influencer or to the dealer/model that has engaged the influencer and advantages from the endorsement. The presence of editorial management by the dealer will not be essential to set off the appliance of those guidelines however might function an element within the dedication of its legal responsibility. The dealer/model is accountable for the breaches of the above-mentioned provisions and particularly the requirement of exercising skilled diligence beneath Article 5 [of the UCPD].”
In the meantime, on-line platforms—together with social media platforms—are already topic to particular transparency obligations beneath the DSA. As an example, Article 26 of the DSA requires platforms to supply customers (together with influencers) a performance to declare whether or not their content material contains industrial communications. The platforms should additionally be certain that different customers can simply and clearly acknowledge this in actual time, together with by means of outstanding labelling. Furthermore, beneath Article 39, very giant on-line platforms should keep and publish a repository of all promoting displayed on their providers.
The Fee is anticipated to attract on current nationwide approaches—each from EU Member States and, doubtlessly, from non-EU nations—when shaping complete EU-level guidelines on influencer advertising. France, having adopted devoted laws on this space already, is more likely to function a key reference level for the forthcoming EU framework. We offer a short overview of the French legislation beneath. It’s value noting, nonetheless, that different Member States (similar to Germany) have additionally begun updating their shopper safety legal guidelines to particularly handle influencer advertising. These developments are past the scope of this weblog publish.
The French Mannequin
France was one of many first EU Member States to take concrete steps to handle the dangers related to influencer advertising. For instance, in 2022 and 2023, the French shopper safety authority (DGCCRF) audited over 300 influencers, discovering that greater than half failed to fulfill transparency necessities—and, in probably the most severe instances, even promoted illicit services or products.
In response to those considerations, France adopted Legislation No. 2023-451 in June 2023, which establishes a regulatory framework for influencers and their brokers. The legislation defines influencers broadly as people or entities who, in change for cost, use their repute to speak content material to the general public electronically for the aim of selling, instantly or not directly, items, providers, or any trigger.
Key provisions of the legislation embody:
- a prohibition on selling sure classes of products and providers, similar to particular health-related or monetary merchandise, nicotine merchandise, and others;
- transparency and contractual obligations, together with the requirement to obviously label sponsored content material and enter right into a written contract with the advertiser; and
- sanctions for non-compliance, together with prison penalties (e.g., imprisonment and fines as much as EUR 300,000) and a potential ban on finishing up influencer actions.
The DGCCRF has introduced its intention to proceed monitoring influencers and, the place needed, impose sanctions beneath its expanded enforcement powers supplied by the brand new legislation.
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Covington & Burling often advises corporations on all facets of EU shopper legislation and carefully displays the event of latest shopper laws, such because the anticipated forthcoming Digital Equity Act. We sit up for helping you along with your EU shopper compliance wants.
