Law on influencers and health, an initial assessment

As we approach the first anniversary of the law aimed at regulating commercial influence and combating the excesses of influencers on social networks, an initial assessment, particularly in terms of public health, is necessary.

Influencers, regardless of their real or supposed expertise, find themselves on shared platforms where the credibility of their messages is often taken for granted by their “followers”. The result of a parliamentary consensus, the aim of the law is to combat the excesses of these practices on social networks. Its first contribution was to define influencers as “natural or legal persons who, for a fee, use their notoriety among their audience to communicate to the public, by electronic means, content aimed at promoting, directly or indirectly, goods, services or any cause (…)”.

In terms of health products, while the bill provided for the outright ban on their promotion, Article 3 refers – unnecessarily? – to the provisions of the Public Health Code (“CSP”). Thus, the influencer is prohibited from promoting prescription drugs and certain reimbursable medical devices. Regarding non-prescription drugs, the influencer must comply with the provisions of the CSP, in particular by presenting them in an objective manner, which is neither misleading nor detrimental to public health, promoting their proper use, respecting the framework of the MA and the recommendations of the HAS.

The influencer must also comply with the requirements relating to the content of the advertising defined by the regulations, in particular the inclusion of a message of caution and a referral to consult a doctor if symptoms persist.

In terms of aesthetics, the contribution of the Law is more specific because it prohibits influencers from “any promotion, direct or indirect (…) of acts, procedures, techniques and methods for aesthetic purposes” and “cosmetic surgery procedures, including in healthcare establishments”. It also prohibits any direct or indirect promotion of “products, acts, procedures, techniques and methods presented as comparable, preferable or substitutable to acts, protocols or therapeutic prescriptions”. In addition, the influencer is required to include, in a “clear, legible and identifiable” manner, the mention “advertising” or “commercial collaboration” during the entirety of their promotional activity. In addition and in particular, influencers and their agents are now subject to the obligation to take out professional liability insurance.

These obligations also apply when the influencers are – like many – established outside the European Economic Area or Switzerland.

The penalties are two years’ imprisonment and a fine of 300,000 euros, subject to those provided for in the area of ​​deceptive commercial practices. They may be supplemented by a ban on exercising the activity of commercial influence by electronic means.

Increased transparency

Nine months after its entry into force, the National Assembly, in a report dated March 20, 2024, welcomed the fact that, thanks to the law, the excesses of influencers have significantly decreased, the transparency of their content has increased (…)».

While between 2021 and 2023, 60% of the influencers checked were in violation of advertising regulations, in a press release dated April 3, 2024, the DGCCRF acknowledged that “after two years of investigations (and 300 influencers checked), 35 warnings (…), 81 compliance injunctions (…) as well as 35 criminal prosecutions”, “a majority of the influencers checked are complying (…)”. It is not excluded that these compliances result, in addition to increased controls, from the possibility provided by the law to subject the DGCCRF’s injunctions to a daily penalty payment.

Despite this crucial step forward in consumer protection, the law is now the subject of a challenge at European level. The European Commission, through Thierry Breton, sent a letter to the French government on 14 August 2023, threatening to initiate proceedings, in particular because the Law contravenes certain provisions of EU Regulation No. 2022/2065 of 19 October 2022 on digital services (“DSA”).

Among the criticisms made is the fact that the law would contravene the principle of control by the State of origin provided for in Article 3§1 of Directive 2000/31/EC of 8 June 2000, according to which only the Member State in whose territory the information society service provider is established may regulate these services. However, the law expressly provides that it applies to all influencers and platforms, even if they are not established in France, provided that they are aimed at the French public.

The major risk lies in the fact that the law fragments the European single market that the DSA aims to harmonise “by imposing unjustified restrictions on the free provision of services (…) which are not established in France”.

The law – which was the first in the world to regulate the activity of influencers – is now being revised, currently before the Senate. However, until this revision process is completed, its provisions, some of which were briefly recalled above in terms of health, apply to influencers, whether or not they are established in France. A word to the wise…

Olivia Bernardeau-Paupe (Partner)

Source: www.usinenouvelle.com