[INFLUENCER - HEALTH - UNFAIR COMMERCIAL PRACTICE]

[BUSINESS LAW - CONSUMER LAW - HEALTH - UNFAIR COMMERCIAL PRACTICES]

In an ever-changing digital landscape, electronic commercial influence has become omnipresent. Law no. 2023-451 of 9 June 2023 (‘Law no. 2023-451’) was promulgated (JORF no. 0133) with a view to regulating the abuses associated with the emergence of this type of activity.

What does Law no. 2023-451 say about commercial influence and the abuses of social network influencers in the area of healthcare?

First of all, Law no. 2023-451 defines the central concept of commercial influence activity by electronic means, which is defined as the act by any ‘natural person or legal entity, for consideration, of mobilising its reputation among its audience in order to communicate to the public, by electronic means, content designed to promote, directly or indirectly, goods, services or any cause whatsoever’.

⚖️ Influencers are prohibited from promoting certain regulated goods and services, or from engaging in acts, processes, techniques or methods, whether directly or indirectly, likely to constitute a misleading commercial practice.

NB: In the event that a minor under the age of sixteen engages in the aforementioned activity, law no. 2020-1266 of 19 October 2020 applies to the employer.

In the case of an influencer established abroad, an agent must be appointed in writing to provide legal representation within the European Union. The representative must also take out civil liability insurance to cover the financial consequences of professional civil liability.

For health and safety reasons, certain practices are prohibited by law.

In the area of health, the promotion of acts, procedures, techniques, methods, protocols and therapeutic prescriptions, particularly for aesthetic purposes or cosmetic surgery, as well as prescription medicines, are prohibited. The same applies to consumable products containing even a partial nicotine component, as well as tobacco and tobacco products, and electronic cigarettes. Promotion of subscriptions to sports tips or forecasts is also prohibited.

By way of exception, influence marketing is authorised for alcoholic beverages, medicines for human use and medical devices under very strict conditions.

In the interests of transparency and fairness, influencers are required to provide information.

The communication in question must explicitly state the commercial intention, in particular by adding the words ‘Advertising’ or ‘Commercial collaboration’.

Furthermore, the claims, promises and arguments in commercial communications must be true and verifiable.

All mandatory information must be presented in a clear, legible and identifiable manner, on the image or video, in all formats, throughout the promotion.

In the case of content including images, influencers are required to include the following information with their publication, depending on the nature of the image:

- Retouched images": if the image has been modified using any image processing technique to refine or thicken the silhouette or modify the appearance of the face; or

- Virtual images": if the image has been produced using any artificial intelligence process to represent a face or silhouette.

🚨 Penalties

In the event of non-compliance, the influencer in question is liable to civil, administrative or criminal penalties.

In addition, the Direction Générale de la Concurrence, de la Consommation et de la Répression des Fraudes (DGCCRF) can order injunctions to cease all misleading commercial practices, published by the DGCCRF or by the influencer for a period determined by the State services.

In addition, online platforms must take measures to combat the dissemination of false information likely to disturb public order. The DGCCRF has the power to request various measures from platforms, such as

- displaying a warning message to consumers ;

- dereferencing an account on a social network;

- restricting access to or blocking an account on a social network;

- temporary or permanent suspension of the account in the event of non-compliance with the law or the platforms' general terms and conditions;

- injunction under penalty.

⚠ In 2023, the DGCCRF ordered an injunction to cease and bring into compliance misleading commercial practices by Mélanie Orlenko (Mélanie ORL), Gulfer Taskiran (Feliccia), and Amandine Pellissard. The acts complained of concerned the promotion of hyaluronic acid injection services by an unqualified person. More specifically, these influencers failed to mention the advertising nature of their communications on social networks (Instagram, Snapchat, TikTok and Youtube).

#influencer #social networks #consumerlaw #health