Influencers: Mexican Consumer Protection Agency establishes advertising guidelines

The guidelines are aimed at content creators of digital platforms and social networks, in order to comply with the rules and regulations related to advertising.

On August 21^st, Mexico’s Federal Consumer Protection Agency (PROFECO, for its initials in Spanish) published in the Official Gazette of the Federation (D.O.F., for its initials in Spanish), the “Advertising Guide for Influencers“, whose main purpose is to disseminate among those engaged in the promotion of content on social networks the obligations and best practices aimed at preventing misleading or unfair advertising.

This guide will help ensure that the advertising disseminated in social networks complies with the requirements of clarity, truthfulness and verifiability established by the Federal Consumer Protection Law (LFPC, for its initials in Spanish) and that all persons must observe when advertising a certain product or service.

1. What recommendations does the Guide give?

Influencers should:

2. Place the label identifying the content as advertising in a clearly visible position, ensuring that it is always accessible.
3. Avoid integrating this tag with multiple hashtags or links that may confuse the audience; it is essential that the content is clearly distinguished as promotional.
4. In the case of visual content, such as images or videos, make sure that the mention that it is advertising is legible and present throughout its reproduction.
5. Use clear and direct tags, such as: #Advertising, #PaidAdvertising, #Sponsorship, #PersonalOpinions. If the content is presented in audio format, explicitly indicate its advertising nature.
6. Review the websites of the brand, product, or service to be promoted to ensure that they are safe and comply with relevant regulations. If possible, provide a source where followers can verify such information.
7. Focus opinions on personal experiences with the product or service and, in the interest of transparency, share both positive and negative experiences.
8. What are the legal implications of surreptitious advertising?

Covert advertising in Mexico is largely regulated by PROFECO through the LFPC. In this regard, the Guide explains: “If you provide information or publish a recommendation of a good, product or service through your digital platforms or social networks, you are generating advertising! In this sense, disguised advertising can be considered as a misleading act towards consumers and, therefore, can be sanctioned for both parties:

For the influencer:

1. Financial penalties: Substantial fines may be imposed on influencers who fail to adhere to the advertising guidelines established by PROFECO. In this regard, influencers are subject to the imposition of fines provided in Article 127 of the Federal Consumer Protection Law, the amount of which may range, depending on the circumstances of the infraction, from $672.11 to $2’150,758.71 MXN. (Approximately from USD 40.00 to USD 127,800.00).
2. Damaged reputation: Influencers who do not disclose hidden advertising may suffer a loss of trust from their followers, which can diminish their influence and their ability to attract future collaborations with brands.
3. Removal of content: In some cases, if PROFECO determines that the content is misleading, it may order the removal of the content.

For the company that has the partnership with the influencer: 

1. Economic sanctions: Like influencers, companies may face significant fines for not adhering to advertising regulations. In the case of companies that generate such advertising for the promotion of their products or services, in addition to the penalties of 127, according to Article 128 Bis of the same law, they may also be subject to the imposition of a fine for violation of the principles of clarity, truthfulness and verifiability or for conducting misleading advertising when it is considered “particularly serious” which may range from $201,633.64 to $5’645,741.68 MXN. (Approximately from USD 11,980.00 to USD 335,471.00).
2. • If the violating conduct that is considered “particularly serious” is committed again by the offender, the corresponding sanction will be the amount equivalent to 10% of the offender’s annual gross income.
   • Article 128 Ter establishes the cases in which an advertising violation is considered “particularly serious” with a list of 11 grounds.

3. Suspension order: PROFECO may order the immediate suspension of the dissemination of advertising that it considers misleading until it is corrected.
4. Reputational damage: Companies associated with misleading or disguised advertising may face damage to their image, which could lead to a loss of consumer confidence in their products or services.
5. Compensation: In extreme cases, if misleading advertising is proven to have caused harm or damage to consumers, companies could be liable for indemnities.

Both parties, influencers and companies, must be aware of the importance of adhering to advertising guidelines and regulations to avoid potential legal sanctions and ensure transparency and honesty in their communications with the public. Mutual collaboration in ensuring that advertisements are made in a clear and transparent manner is crucial to protect against these potential repercussions.

At ECIJA Mexico we constantly provide advice to providers of products and services to ensure compliance with applicable regulations and promote a culture of responsible consumption. You can find the document issued by the Authority in this publication: www.dof.gob.mx/2023/PROFECO/guiainfluencers.pdf

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Contact information:

Intellectual Property and TMT Area of ECIJA Mexico

socios.mexico@ecija.com

(+52 55) 56 62 68 40