Life Sciences Bit: Watch out before you post: new rules on influencer marketing in Belgium
As a business operator, you obviously want your products to be known by the public and more specifically by selected target groups.
To do so, many companies have chosen to heavily invest in “influencer marketing”. Many companies are partnering up with influencers to promote their food supplements or (over-the-counter) medicines. Influencers get free samples and in turn post pictures of them using the products, accompanied by a glowing recommendation on Instagram or other social media channels.
No strict legal framework in Belgium
To date, there is no specific legislation in Belgium aimed at protecting consumers against misleading influencer marketing. That is why the Belgian Advertising Council recently published a number of guidelines after close consultation with stakeholders in the advertising sector.
Guidelines of the Belgian Advertising Council
The guidelines apply if the online influencer marketing meets the following (cumulative) criteria:
1. The online influencer receives a consideration in kind or in cash to communicate about a brand, product or service; Giving a product free of charge for a specified period (e.g. providing samples of a drug or a cream for the influencer to comment on them) can also be seen as a consideration in kind; and
2. The advertiser has significant control over the influencer’s communication (e.g. giving the influencer instructions or requiring the advertiser’s approval before posting).
If these two conditions are met, the influencer marketing should comply with the following guidelines:
1. The influencer’s communication needs to be clearly recognizable as a commercial communication. This can be achieved by:
- An explicit statement indicating that it is a commercial communication (e.g. “sponsored by…”, #promoted or #advertising);
- The context in which the online message appears; or
- Mentioning the brand or the logo, making it clear that it concerns a commercial communication (e.g. #AdvertisingSandoz or #SponsoredBySolvay)
2. The influencer’s commercial communication needs to be fair, and cannot contain information or statements that are false or misleading; It should also not induce children into convincing their parents or other adults to purchase a product for them.
What if your influencer marketing does not comply with these guidelines?
Both your company and the influencer can in such case be held responsible for non-compliance. The “JEP” (the Belgian self-regulated disciplinary body of the advertising sector) may also formally request you to change or cancel your non-compliant marketing campaign or even take enforcement actions to achieve this goal.
Should you have any questions or remarks, please do not hesitate to contact your Loyens & Loeff adviser, Stéphanie De Smedt or Olivier Belleflamme.
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StéphanieDe SmedtSenior associate Attorney at Law
Stéphanie De Smedt is senior associate within the Litigation & Risk Management Practice Group of our Brussels office.
She is head of the IP/IT & Data Protection Team in Belgium and is team leader of the firm-wide Healthcare and Life Sciences Team.
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