POP LAW: Influencer Marketing

Visualize a close-up of a twenty-something lady slowly applying lotion to her arms.

Cut to a full-body shot of the same woman, showing her dresser, with the shiny shimmering lotion container, with its brand name prominently facing the camera – and you – the viewer of that thirty-second TikTok video.

The same scenario works for men and other genders, too: a relatively popular internet personality, usually with a minimum of ten thousand followers or subscribers, endorsing a brand, product, service, or idea, for you/us, to be “influenced” and hopefully, patronize the same.

Just like that local male influencer, with almost a million followers and whose to claim to fame, are his usually expletive-laden videos on such topics as college student lingo, street food, and even the neighborhood gossipmongers. That guy has now moved on to endorsing such items as car batteries and pastries. There is also that local female content creator, with almost half a million followers and whose food and travel vlogs have now turned into viral sponsored posts about hotel buffets, celebrity coffee shops, and even condo accommodations.

Put differently, this so-called influencer-driven marketing, or, to be quite technical, advertising, has now been quite the staple of social media applications such as the aforementioned TikTok, Facebook, Instagram, and YouTube.

As relative proof, according to the influencer data tracker, “I Navigate the Social Game”, or simply, www.insg.co, at least seventy percent of purchases by Filipinos they have surveyed, were the direct result of influencer recommendations. This, based on the same website’s data, is partly explained by the four hours and seventeen minutes that Filipinos with social media accounts spend online, on average. Also, still according to “insg”, at least fifty-eight percent of social media influencers – who are also branded as content creators – maintain their personal style, vis-à-vis the brand(s) that they endorse.

With these curated data, could we say that influencers/content creators are now the standard for us consumers to rely on the authenticity and quality of such everyday products as bath soap, handheld electric fans, and underwear? Who gatekeeps the veracity of these influencers’ claims? What remedies, if any, are available for the common folk, in case of product disappointment?

Article 110 of Republic Act (RA) 7394, or the Consumer Act of the Philippines, states, among others, that it is unlawful for any person to disseminate or to cause the dissemination of any false, deceptive, or misleading advertisement through traditional media such as television, radio, and newspapers or magazines, and, ahem – any other medium – which logically includes social media – to induce or to likely induce directly or indirectly the purchase of consumer products or services.

The same Article provides in part, that an advertisement is false, deceptive, or misleading, if it is not in conformity with the provisions of RA 7394, which includes labelling, packaging, and ingredient/component information, overstated claims or statements as to quality or value, and half-truths as to consumer expectations, to name a few. An advertisement is also not truthful, if it is misleading in any material respect.

To unjumble the lawyer-speak, the law simply means that, if an influencers’ presentation of a product or service, is not honest enough with the real packaging, components, effects, and/or price of such good, when or after a buyer has purchased the same, such influencer and the people or brand with whom he or she is connected, might have violated the Consumer Act of the Philippines.

As an example, a content creator cannot say that a brand of toothpaste whitens teeth, without citing or referring to a scientific study, or without including a disclaimer that the whitening effect would only take effect if the same product is used regularly for a given timeframe and/or a given frequency.

By the same token, an influencer cannot absolutely claim that online gambling is “fun”, without mentioning the mathematical probability that bettors may lose their life savings in a single sweep.

Another example would be the oft-repeated line, “lifetime warranty” – which is commonly found in electric or electronic products – often without specifying as to the real coverage of this warranty.

And that is just one aspect of one pro-consumer statute we have discussed so far. Add to that, the Philippine Competition Act (RA 10667); the Food and Drug Administration Act (RA 9711); and the Generics Act (RA 6675).

Truly, influencers need to be cautious in making hasty generalizations as to the products or services they endorse, because their relative popularity, witty dialogue, and/or double-entendre dance moves, are not, in any way, substitutes for facts, and more so, the truth, about the benefits or disadvantages of the advertised goods upon consumers.

In fact, content creators need to consider the Revised Penal Code’s Article 318, a portion of which, states that, a person engaged in deceitful advertising may be criminally liable – prison time for not taking time to get their facts straight.

On the flip side, should we just trust the traditional media and the traditional celebrity endorsers to help convince ourselves to buy the latest shampoo, refrigerator, or bedroom lube? This, at best, is a subjective question that is better addressed by individual discretion, and which is likewise influenced, pun intended, by other factors such as, financial capacity, age, educational attainment, and geographical area, and, obviously, internet connectivity.

If a person has no regular social media browsing habit, could we expect him or her to be persuaded to buy vape as endorsed by a rap star-influencer? On the contrary, could we dissuade our local “sunog-baga” not to buy whisky after seeing the “budots” challenge of a bikini-clad content creator?* (PJPP)

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N. B.: The contents of this article do not constitute legal advice. The writer may be contacted via: atty.patrickjay.pangilinan@gmail.com