Influencer marketing as a potentially unfair commercial practice: the Commission’s new guidance

The European Commission adopted a non-binding guidance notice on Unfair Commercial Practices Directive in December 2021, which is to guide national interpretation of its provisions. This contribution analyses how the Commission advises to apply the current provisions protecting consumers against unfair commercial practices to influencer marketing. Despite influencer marketing finding a rather prominent space in the guidance, the Commission steers clear from prescribing black-and-white interpretation rules, for example on: how to determine whether a particular person is an influencer; whether they could be perceived as a trader; when an influencer’s activity is an editorial content; whether influencers with adult audience could engage in aggressive commercial practices.