30/08/2024
Using influencers has become a well-known marketing strategy for small to large businesses. It has benefits that include being able to promote your product through an influencer who has an engaged audience that trusts the influencer and their product or brand recommendations or affiliations. When engaging an influencer, whether you are gifting a product or paying them a fee to promote your product or service, you need to consider whether they need to disclose to their followers the relationship between the influencer and your brand to avoid being in breach of Australian laws. This article will explore the legal considerations of engaging an influencer for marketing purposes and provide guidance to ensure you are complying.
Australian Consumer Law
The Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth) applies to all Australian businesses and aims to protect consumers and ensure fair trading in Australia. When promoting a product through an influencer, you should have awareness of the following sections of the ACL:
- Section 18 provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
- Section 29 prohibits making false or misleading representations for commercial purposes, including testimonials.
Influencer marketing might be considered a breach of these sections if an influencer does not disclose that they are receiving a benefit of some kind in exchange for their promotion of a product or service on social media. Also, if a business prescribed a “script” outlining how an influencer should review their product or service, this could be considered a false testimonial and be a breach of the ACL.
Consumers or competitors can make complaints about other businesses and influencer advertising that does not comply with the ACL and if the ACCC were to investigate the complaint and find the advertising non-compliant, you could be fined or be subject to other penalties.
Advertising Industry Self-Regulation
The Australian Association of National Advertisers (AANA) has established industry codes and guidelines that regulate advertising in Australia. The AANA have a Code of Ethics which contains a universal code that applies to all advertising in Australia. They also have more specific codes that apply to various industries including:
- Food & Beverages Advertising Code;
- Children’s Advertising Code;
- Environmental Claims Code; and
- Wagering Advertising Code.
A consumer can make a complaint to Ad Standards if they believe an Australian advertisement is in breach of an AANA code. Once a complaint is received Ad Standards may consider the complaint and refer it to the Ad Standards Community Panel to assess whether it is in breach and decide on the appropriate penalty.
In addition to the AANA, there is the Australian Influencer Marketing Council (AIMCO). AIMCO have set out a specific code that relates to influencer marketing. The AIMCO Code of Practice aims to provide more specific guidance regarding best practice of how to engage in influencer marketing.
Industry Specific Regulation
Under the Therapeutic Goods Advertising Code (TGA), businesses are required to advertise therapeutic goods to the public in a safe and ethical way. All advertising for therapeutic goods must promote the safe and responsible use of those products and must not take advantage of consumers, including through influencers on social media.
It is important to understand what the TGA approved purpose of the product is and not to advertise the product for a purpose other than what is approved, even if the influencer’s experience with the product is otherwise. The overarching principle regarding therapeutic products and advertising is that therapeutic goods should be chosen based on clinical needs, not through the persuasion of influencers.
Guidance for businesses engaging Influencers for marketing
When you engage an influencer to promote your product or service, consider the following tips:
- If the influencer is receiving some kind of benefit for promoting your product or service, they need to disclose this. This includes being gifted your product or service for free. The disclosure must be clear, for example they could use #ad or #sponsored or #paidpartnership. It is no longer acceptable to use colloquial or shorter versions such as #collab or #spon or #gifted, it needs to be more explicit.
- Make sure you are across the specific industry codes for your product or service, whether it is a food or beverage, or a therapeutic product regulated by the TGA. If you are unsure, contact Griffin Legal for advice from our experienced advertising regulatory team.
- When engaging an influencer make sure you are not implying that the influencer will only receive payment for a positive review of your product or service and ensure that their post reflects their genuine views that naturally fit with the reputation and style of the influencer.
Before you engage with influencers for marketing, consider whether you need legal advice. Griffin Legal has an experienced advertising regulatory team who can give you the advice you need so that you are confident your marketing with influencers is compliant.
Griffin Legal has an experienced advertising regulatory team who can give you the advice you need so that you are confident your advertising is compliant.
For assistance contact our team at enquiries@griffinlegal.com.au