The Superintendence of Industry and Commerce (hereinafter, the "SIC") announced the issuance of the "Guide to Good Advertising Practices through Influencers" (hereinafter, the "Guide").
This has been a longstanding project by the SIC that recognized that the current parameters to regulate advertising are not sufficient to meet the challenges of new technologies and innovative ways to influence the consumer. It is worth noting that the draft Guide that was submitted for comments from the public was not substantially modified, so the original idea of the SIC remained intact.
The Guide recognizes that there are currently different provisions that regulate advertising in different areas, such as: medicines (prior authorization of INVIMA), energy drinks (Resolution 4150 of 2009), harmful products (Law 1480 of 2011 - hereinafter "Law 1480"), alcoholic beverages (Decree 780 of 2016) and tobacco and its derivatives (Law 1335 of 2009). However, it is accurate in stating that its role is not to further overwhelm the current ecosystem of norms, but to order the correct application of the same. We will see if in its application this purpose remains firm.
Regarding the content of the Guide, the SIC determined that it has three specific purposes:
- To guide advertisers and influencers on the guidelines to be observed when issuing advertising messages.
- To promote the responsible use of new advertising practices through influencers.
- To provide tools to consumers, that allow them to identify the messages they receive from influencers.
These assumptions permeate the definitions and recommendations included in the Guide that, despite their apparent passive role, are likely to set the tone for the new reality of marketing through influencers.
In particular, we must emphasize three innovations relevant to consumer relations:
A. Definitions:
There are three main definitions established by the SIC to implement its Guide:
(i) Advertiser:
The criteria that define the advertiser are: (a) any person, (b) who publicizes commercial advertising aimed at promoting the products it produces or markets, (c) for the purpose of influencing the consumer.
(ii) Influencer:
The criteria that define the influencer are (a) any person, (b) who publishes content in the media, (c) sharing experiences and opinions capable of predominantly influencing consumer decisions, (d) generating credibility with their followers
(iii) Business relationship between advertiser and influencer:
The criteria that define this relationship are: (a) the advertiser offers the influencer (b) some type of payment or compensation, (c) in exchange for content in a media (press, TV, telephone, movies, etc.) (d) on a product, (e) with the advertiser's guidelines (f) in order to influence the consumer decision.
These are the pillars with which the SIC intends to analyze the proactive role that each one has in consumer relations.
These new descriptions complement the original definitions of Law 1480 (advertising, product, misleading advertising, information, etc.) to create an ecosystem of interpretation around the new technologies and ways to influence the consumer.
B. Recommendations:
Once the basis of the Guide is established, the SIC proceeds to provide "recommendations" to advertisers and influencers separately.
In connection to advertisers, these "good practices" are likely to require advertisers to draft, negotiate and implement different contractual provisions and corporate policies that mitigate the risk of non-compliance with, among others, the following recommendations:
(i) Identify messages as advertising: Messages addressed to consumers in order to influence their decisions, should be identified as advertising.
(ii) Require that the consumer be informed of the existence of a business relationship with the influencer: The advertiser must then ensure that the influencer informs its audience about the business relationship.
The SIC proposes several guidelines for this case, among which are, for example, that the association should be displayed from the beginning of the advertisement, it should be available throughout the advertisement and as visible as the main message. For this purpose, it recommends the use of the "#" and mentions some written examples.
(iii) Design a transparency policy: From the moment of initiating the relationship with the influencer, "(...) it is clear that the messages will be transmitted as advertising and with the proper identification”. This situation will imply the drafting of such policy by the legal teams of the advertisers and the inclusion in the agreements signed with influencers.
(iv) Reviewing consumer comments: In case of finding negative reviews where the consumer feels that he/she has been misled, advertisers and influencers should proceed to make the appropriate modifications.
Operationally, the application of this criterion is diffuse insofar as "negative" reactions do not always come from advertising, but rather a breach of the consumer's duty to be informed about the instructions and conditions of the product.
In connection to influencers, fewer recommendations were issued and are focused primarily on message exposure and guidelines determined by the advertiser. Among them, we find:
(i) Identifying when there is a business relationship with an advertiser: If there is remuneration or payment and there are suggestions regarding the content of the message and the periodicity of its broadcasting, the influencer must make it clear to the consumer that the message he/she is transmitting is an advertising piece.
(ii) Coordinate the guidelines of the message with the advertiser: From the moment the relationship is established, the influencer must demand that guidelines be provided on how that piece is to be identified as advertising.
(iii) Prevent the message from being conveyed "(...) as a natural and spontaneous one (...)" The influencer is advised to refrain from transmitting an advertising message as if it were a spontaneous impression arising from his or her experience.
Finally, in terms of liability, Law 1480 originally assigned liability to advertisers for "the damages caused by misleading advertising". Likewise, the media would be liable if and only if intent or gross negligence is proven.
The Guide takes advantage of this scheme and, recognizes as a differential factor to determine whether or not the liability of the advertiser is applicable, whether a commercial relationship exists between the influencer and the advertiser and if such connection is clear and determinable in the message being broadcast.
Based on this parameter, the SIC assigned the liabilities of influencers and advertisers, as follows:
(i) When the commercial relationship is not clear and determinable: The influencer could eventually be considered an advertiser and be liable for the possible misleading.
(ii) When the business relationship is clear and ascertainable: The influencer will be considered as a means of transmitting the message that aims to influence the consumer's decision and its liability will be limited to this role.
Consequently, the Guide conditions influencers so that if they do not want to assume liability as advertisers, they should clearly state the nature behind their commercial message.
(iii) When there is no commercial relationship: If the influencer is the one who spontaneously issues an advertising message without a commercial relationship with any advertiser, the influencer will be considered an advertiser and be liable as such.
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