The Federal Consumer Protection Attorney’s Office Seeks to Regulate “Influencers”

Over the last few years, and thanks to the development of different digital platforms and social networks, there has been a notable increase in collaborations between brands of different products, goods or services, and individuals known as “influencers” in order to promote or advertise certain products, goods or services (the “Products or Services“).

However, frequently there have been situations in which consumers’ rights have been disregarded and the dissemination of information that is rather questionable or even misleading.

In response to the above, governmental authorities such as the Federal Consumer Protection Attorney’s Office (“PROFECO“) have committed to: i) guarantee the recognition consumers’ rights in these media; ii) guarantee that the advertising or promotion of Products or Services adhere to the provisions of the Federal Consumer Protection Law and its Regulations (the “Consumer Protection Legislation“); and iii) promote that all those persons who disclose or promote information on any kind of Products or Services are informed and aware of the provisions applicable to them in accordance with the Consumer Protection Legislation and other special laws that are applicable to them.

In this regard, on August 21st, 2023, the Agreement by which the “Advertising Guide for Influencers of PROFECO” (the “Guide“) was published in the Federal Official Gazette.

The purpose of the Guide is to provide all those who conduct themselves as “influencers” with the basic guidelines and recommendations for properly complying with the Consumer Protection Legislation. Hence, all those who
provide information, suggest, mention and/or make reference to Products or Services through their digital platforms or social networks shall abide by such regulation.

Within the main recommendations provided by PROFECO to “influencers” are the following:

1. Verify that the information shared is: i) true; ii) verifiable; iii) clear; iv) unquestionable; and v) that it does not contain misleading or abusive descriptions.
2. In the event that the Products or Services may require it, warnings for its safe use must be included, as well as any restrictions or prohibitions that may apply for safety or health reasons for consumers.
3. Specify at all times that it is advertising, which can be done by including within each publication the hashtags: #PaidAdvertising, #Advertising, #PersonalOpinions, or #SponsoredBy.
4. Place the information in a visible place and make it available at all times.
5. Verify whether specific provisions other than the Consumer Protection Legislation are applicable to the Products or Services (food and beverages, cosmetics, cleaning products, health services and supplies, health services and supplies, dietary supplements, beauty and perfumery products, among others).
6. Review and verify that the websites of the brands of the Products or Services are reliable, and that the Products or Services are safe and comply with the applicable regulations.

Therefore, as of now it will be important to ensure that all those who promote or inform about Products or Services on digital platforms or social networks do comply with the Consumer Protection Legislation, and other applicable provisions, in order to guarantee the rights of consumers and avoid being sanctioned by PROFECO.

Among the sanctions that are applicable to “influencers” who fail to comply with the Consumer Protection Legislation, are the following:

1. Payment of a fine from MxCy$672.11 up to MxCy$2’150,758.71 (approx. US$126,500.00);
2. Payment of a fine of MxCy$201,633.64 up to MxCy$5’645,741.68 (approx. US$332,000.00);
3. Payment of a fine of up to 10% of the annual gross income obtained from the commercialization of the Products or Services contained in the corresponding advertisement; and
4. In case of recurrence, the aforementioned amounts will be duplicated, and may be subject to an administrative arrest for up to thirty-six hours.