Influencer marketing, what rules?

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Corporation sales and marketing policies, as mentioned above, are increasingly resorting to social marketing and influencer marketing to stimulate new consumption patterns and promote various product categories. Making systematic use of:

– Persuasion techniques based on behavioral sciences(neuromarketing) and covert advertising,

– digital communication tools, often impromptu and difficult to track.

An in-depth look at the still inadequate consumer protection rules and their enforcement in Italy.

Consumer Code and Digital Chart

In the absence of specific regulations on the use of the Internet and social networks for the purposes of advertising, even covert advertising, the rules to protect (at least theoretically) consumers in Italy today are represented by:

Consumer Code. Rules on transparency and deceptive practices (Legislative Decree 206/05, Articles 22 and 23.1.m), the enforcement of which is the responsibility of the Antitrust Authority (AGCM), also known as Antitrust,

Digital Chart. A best practice document developed by the IAP (Institute of Advertising Self-Regulation), which as of April 2019 complements the provisions of the Code of Marketing Communication Self-Regulation.

The basic requirement is to clearly communicate to the consumer whether or not the content displayed by theinfluencer/blogger/celebrity is of a commercial and promotional nature. Therefore, the advertising activity carried out by theinfluencer (or other related figures) complies with the above regulations only when the user/follower/consumer is actually put in a position to understand its purpose.

Influencer marketing, antitrust guidelines

The Competition Authority has intervened on several occasions on surreptitious advertising through social media and more generally on the phenomenon ofinfluencer marketing. Resorting, in 2017 and 2018, to a soft law instrument, moral suasion (1,2). To call on some influencers and the companies owning the brands involved to correct their modus operandi. In particular, the AGCM pointed out:

General ban on surreptitious advertising, including through social networks,

duty to highlight theinfluencer ‘s commercial and advertising intent, as part of promoting a brand. Followers or consumers must be able to distinguish advertisements from advice derived from everyday experiences or habits,

Insufficiency of only references to advertised brands through tags or labels or references to relevant profiles on social media
network to communicate the promotional nature of communications,

obligation to include warnings, in any content with advertising value disseminated through social media. By way of example and alternative, #advertising, #sponsored, #advertising, #insertionapayment. That is, in the case of the provision of goods and services free of charge, #productprovidedby….(brand name).

Antitrust, the Alitalia and Barilla cases.

The Italian antitrust intervened over the past year on social marketing commissioned by Alitalia and Barilla to networks of influencers and microinfluencers. In as many proceedings whose investigations were concluded following the approval of commitments made by the perpetrators of unfair business practices (3.4).

Alitalia is the proceeding-pilot under which the procedures to be applied have been defined for the purpose of removing and preventing the recurrence of unfairness profiles of business practices:

internal procedures where content is expressed and compliance with consumer protection regulations is prescribed, with special regard to the prohibition of surreptitious advertising,

guidelines defining the rules of conduct to which influencers must adhere,

standard clauses in contracts with any business partners for licensing the trademark. With provision for a commitment on the part of theinfluencer to make manifest any contractual relationship established with a principal, i.e., the receipt as a gift or loan of products or other goods and services, with appropriate and appropriate notices.

The Barilla case – settled by the Antitrust Authority on 25.2.20, accepting the commitments made by the operator – involved the promotion of some Mulino Bianco brand products, ‘Pan di Stelle’ line. The occasion was worthwhile to learn more about the contents of the procedures that the principal must apply and share with their promotional service providers through social marketing and influencer marketing:

guidelines should express in a clear and understandable way for influencers the rules of conduct to follow. Therefore, these should not be complex contractual regulations but key principles. With evidence of the obligation on the part of influencers to include appropriate disclaimers, in all of their communications on their various social profiles, in both cases of posts referring to products obtained as free gifts or products reviewed as part of commissioning or collaborative relationships.

in the case of giveaway products, posts must contain hashtags such as #suppliedby…(brand) or #giftby…(brand) or #suppliedby…(brand) Or similar wording that can communicate that the product was provided or given away by the company owning the brand (or by others on its behalf, ed.),

in cases of commissioning and/or collaboration between theinfluencer and advertiser companies (including through agencies or other intermediaries, ed.), posts must contain hashtags such as #advertising…(brand) or #sponsoredby…(brand) or #advertising…(brand) or #insertionpayment…(brand).

Contracts of commissioning and collaboration

Contractual models for commissioning/collaboration should specify relationships with influencers and any agencies or other parties that engage them. In the case of a direct relationship between companies and influencers, the contract should also include standard clauses with mechanisms for deterrence and sanction in case of violation of established rules.

In cases of agency brokering , the contract should contain clauses to hold the agency accountable for the influencers‘ actions. With a duty of supervision and a duty to act promptly in case of noncompliance with the guidelines.

TV, web and social marketing of junk food. WHO guidelines and Unicef report

The World Health Organization (WHO) in 2017 recommended that the 194 member states adopt appropriate rules. With the specific goal of protecting public health from the unregulated and irresponsible promotion, through web and TV, of junk food (HFSS, High in Fats, Sugar and Sodium).

UNICEF, in February 2020, denounced the health dangers to children and adolescents linked to predatory junk-food marketing. Protecting children from the Global Syndemic is necessary and urgent to help achieve the third of the Sustainable Development Goals (SDGs), Ensure Health and Well-being.

Nutrition policies, the missing rules

The planet’s legislators, as it turns out, are hampered by Big Food ‘s mighty lobbies in the exercise of their functions to safeguard public health. Establishing suitable nutrition policies to counter the epidemic of obesity, overweight and related diseases (NCDs, Non-Communicable Diseases) is a daunting task for the European Commission itself. Whose EU Platform for Action on Diet, Physical Activity and Health failed miserably, in 2019, after 14 years of failure.

In Europe as elsewhere, the rules are therefore left to the self-regulation of industry and advertising representatives. Soft law instruments in themselves fragile and unfit for purpose, all the more so where it is a question of wanting to regulate the use of digital information tools whose very workings are unknown and unknowable to those not involved. As well as being protected by inviolable information security systems. The starting point, unresolved to date, remains the need to define the nutritional profiles of ultra-processed foods that are incompatible with healthy nutrition. These should be identified with appropriate markings on the front label (e.g., NutriScore,
warning labels
), subjected to appropriate taxation, marketing bans (e.g., in vending machines and near schools) and advertising.

Dario Dongo and Selena Travaglio

Notes

(1) AGCM. Antitrust on Influencer Marketing: advertising must always be transparent. Press release. 7/24/17, https://www.agcm.it/media/comunicati-stampa/2017/7/alias-8853

(2) Antitrust. Second moral suasion for influencers: surreptitious advertising banned at all times, even on social networks. Press release. 6.8.18, https://www.agcm.it/media/comunicati-stampa/2018/8/alias-9449

(3) AGCM. Case PS11270, Aeffe-Alitalia. Provision 22.5.19 no. 27787

(4) Antitrust. Case PS11435, Insanity Page-Hidden Barilla Advertising. Measure 25.2.20 no. 28167