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The Consumer Code implements the EU Unfair Commercial Practices Directive (2005/29/EC). Under the French Consumer Code, there is a general prohibition on unfair commercial practices. A commercial practice is unfair if it contravenes professional diligence and is capable of affecting to a substantial degree the average consumer's economic behaviour relating to a good or service. The main form of unfair commercial practice is misleading advertising. An advertisement can be considered misleading if it is ambiguous or if information relating to the product has been intentionally omitted.
The Autorité de Régulation Professionnelle de la Publicité (“ARPP”) is an advertising self-regulatory authority whose aim is to maintain high standards of advertising. According to the ARPP’s Digital Advertising and Marketing Communications Code, marketing communications and advertising should be clearly distinguishable as such, whatever their form.
The Digital Advertising and Marketing Communications Code has a specific section on influencer marketing. This section states that: where an influencer expresses himself or herself in the context of a commercial collaboration with the brand (for example, the influencer’s content is paid for by money or through gifting a free product), the collaboration must be brought to the attention of the public. It must be done so:
- Explicitly. The influencer should be mindful that not everyone will be familiar with hashtags such as #sp or #collab and even less so with hashtags with English phrases. Words that are clear and understandable by all are preferred (for example, the French translation of “in partnership with” or “sponsored by”).
- Instantly. The commercial collaboration must be revealed immediately. Additional user action (such as the requirement to click a post in order to see its true commercial nature) should therefore be avoided. Also, if the post is a video, the disclosure should not be at the end of the video.
In addition to the above, an influencer’s post will have an “advertising nature” when all of the following criteria exist:
- The commercial collaboration as described above.
- The brand has significant control over the content.
- The content is approved by the brand prior to publication.
- The purpose of the influencer’s content is to promote the brand’s product or service (for example, via a written and visual presentation with a promotional goal).
Where a post has an advertising nature as described above, all of the ARPP’s ethical rules which apply to advertisements will also apply to the post. In addition, the ARPP recommends adding an explicit disclosure identifying the advertising as such (unless it is obvious already), in order for the advertising nature to be noticed immediately.
Link to the ARPP’s Digital Advertising and Marketing Communications Code (in English)