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Colombia: Superintendence of Industry and Commerce issues its guide on good practices in advertising through influencers

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In brief

What’s new?

The Superintendence of Industry and Commerce (SIC) issued its “Guide on good practices in advertising through influencers” (the “Guide“), defining guidelines for advertisers and influencers on the best way to promote products to consumers, mainly through digital means, guaranteeing the rights of consumers.

Contents

  1. Recommendations for advertisers
  2. Recommendations for influencers
  3. Possible consequences

Although the Guide is not a law, its guidelines set out the vision of the consumer protection authority (SIC) on the best way in which advertisers and influencers can comply with their legal obligations under the Consumer Statute (Law 1480 of 2011) and concordant regulation. Therefore, it is highly advisable to consider them and apply them when advertising products to consumers through influencers.

For the proper understanding of the SIC recommendations to advertisers and influencers, bear in mind that the Guide defined the “commercial relationship between advertiser and influencer”. The SIC explained that this relationship arises from the offer of any form of compensation that the advertiser proffers to the influencer so that he or she generates or disseminates content regarding a product, under the advertiser’s control, in order to influence the consumption habits of its audience. Compensation can be in money or any other form of value, including gifts, product loans, incentives, commissions, benefits, payments in kind, discounts, or coupons, among others.

Recommendations for advertisers

  1. Identify and inform the influencer about the advertising standards applicable to the product advertised.
  2. Make sure that commercial messages issued on its behalf are clearly identified as advertisements.
  3. Require the influencer to inform consumers about its link with the advertiser so that the consumer can identify when they are in front of an advertisement and when they are not. To convey this message to the consumer, the following must be taken into account:
    1. Be visible from start to finish and at least in proportion to the main advertising message. However, it must be differentiated from any tag or link that is part of the advertising.
    2. In Spanish and in a simple and clear language.
    3. If it is live broadcasted, the message should be recalled periodically. If it is a message in several deliveries, it must be contained in all of them.
    4. Be able to be transmitted on any device or platform on which the advertisement is transmitted.
    5. In expectation campaigns, the name of the advertiser may be omitted, but the message that it is advertising must be clear.
  4. Implement a transparency policy within its advertising activities through influencers and make it known to all the people involved in the process.
  5. Actively participate in the creation, preparation, broadcast, and dissemination of advertisements through influencers.
  6. Periodically review the comments and suggestions of consumers who are part of the influencer’s audience.

Recommendations for influencers

  1. Identify when there is a commercial relationship with the advertiser.
  2. Require the advertiser or agency that hires the influencer to indicate what the guidelines are to fully identify the message as an advertisement.
  3. Refrain from advertising if required or suggested to hide the advertising nature of the message, avoiding passing the advertisement messages as natural and spontaneous messages.

Possible consequences

As mentioned before, failure to comply with the guidelines is not in itself a legal violation. However, as these guidelines are an expression of the vision of the authority on the conduct that the advertiser and the influencer must assume with respect to the advertising that the influencer transmits to consumers, not following them generates a risk of violation of the rules that are behind the Guide.

A violation of consumer protection provisions may expose persons to not only possible reputational damages, but also to the possibility that consumers file consumer protection lawsuits or administrative claims. Consumer protection lawsuits can lead, among other consequences, to fines of up to 150 SMMLV (in 2020 equivalent to COP $131’670.45, USD $35.00). Administrative investigations for failing to comply with the provisions set forth in the Consumer Statute may lead, among other consequences, to the imposition of fines of up to 2,000 SMMLV (in 2020 equivalent to COP $1.755,606.00, ~USD $465.00)

Spanish version

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Author

Carolina Pardo is a lawyer and specialist in International Contract Law graduated from Universidad de los Andes. She obtained a LL.M. with specialization in International Private Law and Competition Law from the London School of Economics and Political Science. Over 20 years, she has advised major national and international clients on matters related to compliance with data protection, competition and consumer law rules. She has also successfully coordinated and prepared proposals for submission to national authorities on behalf of major industrial groups in Colombia. She has been recognized by Chambers Latin America as leader in the Competition ranking in Colombia, and the practice group headed by her has been ranked first for two consecutive years. She joined Baker McKenzie in 1994, and currently serves as international partner and heads the Competition, IT and Consumer Law practice group. Additionally, she is an active member of the steering committee of the Latin American Competition, Compliance and IT practice groups of Baker McKenzie.

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