Italian competition Authority investigates on influencer marketing

The Italian competition authority (AGCM) is currently investigating influencer marketing practices carried out on social media.

Influencer marketing consists in the posting on blogs, vlogs and social networks (such as Facebook, Instagram, Twitter, YouTube, Snapchat, Myspace) of photos, videos, and comments by bloggers and influencers (i.e. online celebrities having a large number of followers), showing support or approval of specific brands (i.e. giving an endorsement), thus generating an advertising effect, without making clear to consumers the commercial intent of the communication.

This phenomenon is increasingly growing in size because of its effectiveness, given the ability of influencers to establish a strong relationship with their followers-consumers, who perceive such communications as advice based on personal experience and not as advertisement. Often, the pictures displaying a specific brand, posted on the personal profile of the celebrity, are mixed with neutral photos, in a flow of images that give the impression of being a private account of the celebrity’s daily routine. Sometimes the photos represent a domestic environment and are shot without using advanced techniques, while in other cases the type of image, the posture of the celebrity, and the surroundings clearly hint to a professional photo shoot. Moreover, the visibility of the product varies substantially, given the heterogeneity of the type of post and of the kind of celebrity. In some cases, the brand name is quoted in the hashtag of the post, in other situations instead they occupy a prominent position in the picture. In addition, the post can be associated with emphatic comments on the product itself.

As prescribed by the Consumer Code in Italy, in order to grant the maximum degree of transparency and clarity on the potential advertising content of the posts published by celebrities, the AGCM, with the collaboration of the Antitrust Unit of the Financial Police, has sent moral suasion letters to some of the main influencers and companies producing the branded goods displayed in the posts.

In the letters, after reminding the addressees that advertisements must always be clearly recognizable as such by consumers, the AGCM has stressed that the prohibition of hidden advertising has a general validity and therefore must be respected also in communications delivered through social networks. Therefore, influencers cannot make consumers believe they are behaving in an unsolicited and unselfish manner when they are actually promoting a specific brand.

The AGCM has thus identified general rules of conduct and has required the addressees to make apparent the possible advertising nature of the content delivered through social media, through the use of warnings, such as #ad, #sponsored, #advertising, #paidad, or, in the case of products given for free to the celebrity, #productsuppliedby; in particular, all these wordings should be followed by the name of the specific brand being advertised.

Given that hidden marketing is considered to be particularly dangerous, since it deprives consumers of the natural defenses that arise in the presence of a declared advertising intent, the AGCM urges all those involved in the phenomenon to abide to the prescriptions of the Consumer Code, providing consumers with suitable indications able to reveal the nature of the message, also when it is the outcome of a commercial relationship, and even when it is based on the free provision of branded goods to the celebrity.

Food products are often subject for influencer marketing: in Italy we had cases related to infant formula, slimming beverages.

Before the Italian AGCM, to my knowledge, only the UK CMA did something similar in the past: see the following link.

10th EFFL Conference – “COOL and Company – The Beginning of the End of the Common Market?”

I am on the move to Berlin this morning, to attend the really interesting on Country of Origin Labeling (COOL) event above mentioned. Thank you to Lexxion for inviting me.

Since the EU Commission, in 2015, decided to not impose mandatory indication of origin beside the ones today in place by horizontal legislation (e.g. Reg. (EU) 1169/2011) and by sectoral legislation (e.g. meat, honey, fish…) many Member States today are proposing national legislation’s act imposing some sort of obligation in terms of COOL: this is particularly true for the milk sector, which is sparkling much debate after France and Italian initiatives.

Which legal justifications stand behind those national drafts? Are they legitimate? If not, which legal instruments we have to fight back the fragmentation of the single market? Is the single market at risk?

Those are the questions we will try to answer and you can expect my take on the event on these pages in the near future.

On the second day of the conference, 9th December 2016, I will have a speech titled:

Drafts on National COOL Regulations
Ireland, Italy (mandatory on milk and dairy products), Portugal (mandatory on milk and dairy products), Poland (voluntary claim “Produkt polski”) Lithuania, Finland, Greece, Romania

and I will participate in a discussion panel on:

Mandatory COOL– Legitimate Consumer Information or a Step towards Protectionism?

together with:

  • Hillary ROSS, Litigation, Regulatory – DWF LLP
  • Andreas MEISTERERNST, Meisterernst Rechtsanwälte, Munich
  • Peter LOOSEN, German Federation for Food Law and Food Science e.V., Brussels

Many other excellent speakers will be there, so this could be a wonderful place to discuss such a complex topic in a 2 days immersive event.

  • Martin HOLLE, Professor of Food Law and Administrative Law, Hamburg University
    of Applied Sciences, Hamburg
  • Dirk JACOBS, Director of Consumer Information, Diet and Health, Food Drink
    Europe, Brussels
  • Paolo PATRUNO, Deputy Secretary General, Liaison Centre for the Meat Processing
    Industry in the European Union (CLITRAVI)
  • Sarah ARAYESS, Hoogenrad & Haak Advocaten, Amsterdam

Here you can see the full program.

The EFFL Conference is an established annual event organized under the auspices of the European Food and Feed Law Review. It is tailored to the needs and interests of those who are daily exposed to European food law & policy and leadership in the food law practice, and I will be very glad to participate.

If you will be there too, drop a note on foodlawlatest@gmail.com and we will discuss further in front of a cup of coffee!