Alerta Legal | Baker McKenzie sugiere revisar convenios con influencers para evitar sanciones de la PROFECO

 In brief
On 21 August 2023, the decree by which the Influencers Advertising Guide of the Federal Consumer
Protection Office (PROFECO) was published, which is a reference tool for content creators,
influencers, and the general public for due compliance with the provisions on advertising established
in the Federal Consumer Protection Law.
Key points
The Federal Consumer Protection Law establishes that the advertising of goods or services
disseminated by any means or form must be truthful, verifiable, and free of texts, dialogues, sounds,
images, trademarks, designations of origin, or other descriptions that induce or may induce error or
confusion because they are misleading or abusive. Consequently, PROFECO published this Guide
in order to create a culture of compliance with the provisions on advertising and to promote
responsible consumption, and to ensure fairness, certainty, and legal certainty in consumer relations.
The Influencers Advertising Guide states that anyone who provides information or recommends a
product, good, or service through digital platforms or social networks generates advertising, including
not only providing this information through paid collaborations but also sharing experiences about
invitations to events or trips, or about goods or other non-economic benefits received as gifts. This is
because these publications influence consumers' decisions to purchase such goods or services. This
confirms that using influencers should be considered as advertising for all legal purposes, at least in
terms of consumer protection.
The Guide provides the following suggestions for publications on digital platforms and social
networks:
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Include the following tags in a visible place to inform if there is any type of commercial
relationship with the trademark they recommend: #PaidAdvertising, #Advertising,
#PersonalOpinions, #SponsoredBy.
Do not include misleading or abusive descriptions.
Include warnings for the safe use of the products, goods, or services, as well as restrictions
or prohibitions for consumer safety or health reasons.
Ensure that the opinion is limited to one's own experience with the products, goods, or
services.
Check that the trademarks, goods, or services are safe and comply with all the corresponding
standards.Legal Alert
Agosto, 2023
Recommendation
Although the Guide is a non-binding consultation tool, it is recommended that content creators and
influencers, as well as companies and trademarks that collaborate with them, check that their
agreements, content, and publications comply with the provisions of the legislation on advertising and
this Guide to avoid conflicts and sanctions from PROFECO. It should be noted that PROFECO carries
out frequent monitoring and surveillance, which, together with consumer complaints, allows it to
initiate sanctioning procedures for misleading or abusive advertising within the regulatory framework
of the Federal Consumer Protection Law, regardless of the fact that the Guide is not yet binding.
 

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