These days, influencer marketing is an indispensable part of virtually any marketing strategy. The attention gained through influencer marketing has recently been a subject of discussion among the competition associations as well. As a forerunner, the Association of Social Competition seems prepared to take a closer look at the topic, as indicated by several media statements. According to its general manager Angelika Lange, the association has already issued warnings to several dozen influencers (https://www.wuv.de/marketing/die_influencer_jaeger).
The association does not shy away from litigation, either. Following Celle Higher Regional Court’s decision on the external presentation of influencer advertising in June 2017 (https://www.skwschwarz.de/en/news/articles/detail-of-article/news/schleichwerbung-richtungsweisendes-urteil-zum-influencer-marketing/4/detail/News/), Hagen Regional Court (September 13, 2017 – Case 23 O 30/17) dealt not only with the external presentation but also with the content of an influencer’s statements.
Influencer Scarlett Gartmann is said to have advertised various products on her Instagram account without marking the content or individual sections as “advertising” (“Anzeige”) or “promotion” (“Werbung”). Hagen Regional Court, like Celle Higher Regional Court, considered this a violation of the marking obligations under competition law.
While this decision was to be expected, what is noteworthy is the component that deals with the content. The regional court obviously also had to decide on the use of the term detox by the influencer, which the court considered a “health claim” in combination with the drink that was advertised by means of a photograph. Such a claim would not be permitted, however, which is why another prohibition claim against the influencer existed.
Particularly in areas that are sensitive to regulatory requirements, such as food law or medical device law, influencers and companies that are commissioning influencers should check in advance whether certain statements can actually be made as planned. Even though the external form can be preserved relatively easily by marking the text as “advertising” or “promotion,” there may be considerable and costly warning potential when the content of statements is examined, which the competition associations increasingly seem intent on exploiting.