From Warsaw to New York: A guide to influencer marketing
More and more, influencer marketing is replacing traditional advertising. And it often generates measurable results, because audiences treat influencers as “people like us” and place greater trust in them than they do in actors in commercials. But sponsored cooperation poses legal challenges. How to ensure the transparency of influencers’ activity? How to protect consumers? The answers often differ from jurisdiction to jurisdiction.
The concept of being an influencer is nothing new. As far back as the 18th century, Josiah Wedgwood successfully promoted his dishes as “Queen’s Ware” and himself as “Potter to Her Majesty.” Two centuries later, in 1931, Coca-Cola exploited the jolly image of Santa Claus to sell more of its sugary drinks than any ad slogan could.
Today’s “influencer” is the latest incarnation of this concept—but with the difference that the reach is global and the impact is immediate. Influencers are people who build loyal communities based on shared interests and emotions. Their greatest capital is trust. Audiences often regard them as friends. Sociologists refer to this phenomenon as a “parasocial interaction”—a one-sided experience that we know someone personally even though we have never met. Audiences regard influencers as “authentic,” and that is their strong suit.
This leads us to “influencer marketing,” or the strategy of promoting brands, goods or services via online posts and reviews by persons enjoying trust on the internet. The scale of this market is vast. It is expected to reach a global value of USD 22.2 billion by the end of 2025, while the broader “creator economy” is slated to exceed half a trillion dollars by 2030.
So it is unsurprising that regulators are trying to keep pace with this phenomenon.
No clear regulations
In Poland there are no regulations expressly addressing influencer marketing, including methods for labelling ads. However, there are general rules in force for protection of consumers and fair competition. The foundation is transparency of messaging: commercial content must be clearly labelled, and hidden or misleading advertising is prohibited. Consumers have a right to know when the message they are viewing is advertising.
The key provisions are found in the Act on Combating Unfair Market Practices of 23 August 2007, which prohibits such practices as concealing information and hidden advertising, and the Unfair Competition Act, which prohibits masking of promotional messages. These rules are elaborated upon in recommendations by the Office of Competition and Consumer Protection (UOKiK) detailing the methods influencers should use to identify sponsored cooperation.
Specific designations
Under the UOKiK guidelines, advertising must be identified, among other requirements:
- Visibly, at the start of a post or clip
- In Polish
- Using a legible font and contrasting colours.
UOKiK also recommends a two-stage labelling system: first using tools provided by the platform, and second by manually adding a designation, such as #ADVERTISING or #PROMOTIONAL CONTENT in Polish. Abbreviations in English such as #ad or #spons are deemed insufficient because they may not be understood by Polish audiences.
Influencers must also identify the brand they are cooperating with, label their own products as #self-promotion, and identify the first gift from a brand as #present (each present after that should be labelled as advertising).
In theory this sounds simple: label, inform, don’t mislead. But in practice all it takes is one missing word to fall afoul of the regulator.
UOKiK reminds content creators that if an influencer obtains any benefit from the published content, the material must be labelled as advertising, even if the person does not formally run a business. In practice, the person is treated like a business operator.
Not everything can be promoted
Polish law imposes strict limitations on what can be promoted. There are prohibitions against advertising of:
- Alcoholic beverages (above 8% ABV)
- Tobacco products
- Prescription drugs
- Gambling.
Others areas, such as dietary supplements, financial services and children’s foods, are subject to special regulations.
Influencers targeting content to persons under age 18 must observe particular caution, as the law prohibits product placements in programmes for children as well as direct encouragements to minors to buy or to request their caretakers to purchase items for them.
Serious consequences
These rules are relatively new, like the phenomenon of influencer marketing as such, but enforcement of the laws has already begun. The regulator has launched proceedings and imposed fines on influencers and brand owners for improper labelling of advertising content by influencers. The sanctions can be severe, potentially reaching as much as 10% of an enterprise’s annual turnover, showing that Poland treats influencer marketing as an important segment of the advertising market. The direction is clear: transparency is not just a choice, but an obligation that will be enforced. The latest cases pursued by UOKiK show how important the transparency of influencer marketing is, and how these regulations are functioning in practice. After issuance of UOKiK’s guidelines on labelling of advertising, influencers have been punished for complete failure to indicate the sponsorship of their content, and for using ambiguous tags such as #COOPERATION rather than #ADERTISING. Fines for influencers have reached tens of thousands of zlotys, and in the case of brand owners even several hundred thousand zlotys.
In December 2020 UOKiK imposed a fine of nearly PLN 450,000 on an influencer for promoting illegal financial pyramid schemes. This represented nearly 30% of his annual income. This indicates the importance of contracts between influencers and brand owners, which should precisely define the manner of labelling content. Both parties to promotional arrangements can be held responsible.
Regulations in the United States
The US, where influencer marketing developed the earliest and has reached the biggest scale, is also where the first major ad campaigns involving influencers have appeared, greatly shaping the entire sector.
Influencer marketing in the US is mainly regulated by the Federal Trade Commission. The FTC guidelines explain in detail how to lawfully use recommendations or reviews in ads. Influencer marketing falls directly under the guidelines, because practically all ads published by influencers on social media constitute product recommendations.
The FTC enforces the guidelines by sending out warning letters to offenders or imposing fines. But it also revises its own recommendations to keep up with the observed trends in the social media market. These recommendations are lengthy and exhaustive, making them an ideal source of information for corporate advertisers. But for the average influencer, the basic source of information is the document called “Disclosures 101,” an eight-page publication written in simple, understandable language.
In one well-publicised case, the FTC punished the popular YouTubers Trevor Martin and Thomas Cassell for promoting the gambling site CSGO Lotto without disclosing that they were owners of the site. In a series of clips, they praised the platform like ordinary users, which was found to be misleading. The FTC ordered them to publicly disclose their affiliations in future publications, while setting the precedent that it is not only the brand that is responsible for transparency, but also the influencer.
The FTC guidelines on influencer recommendations set national standards for best practice in disclosing information. At the state level, there are two methods of regulating influencer marketing. The first is to implement targeted legislation in areas not covered by federal law. The second is to adopt broad state consumer-protection regulations aimed at prosecuting unlawful influencer marketing.
More and more states are developing their own regulatory framework for influencer marketing. For example, many of them are expanding the regulations governing children’s work as influencers. An interesting example is Illinois, the first state to pass a “Kidfluencer Act.” In force since 1 July 2024, it provides financial protections for minors appearing in profit-generating video content.
Most of the states that have not passed influencer marketing legislation instead rely on regulations governing unfair and deceptive acts and practices as their main instrument of oversight. In nearly every state, laws are in place banning such practices in commerce. Broadly worded, these laws authorise state attorney generals to prosecute misleading influencer marketing and other dishonest advertising practices.
Conclusions
Influencers around the world are learning the same lesson: trust is a currency that cannot be counterfeited. Failure to comply with the regulations can expose them to severe sanctions impacting them financially but also hurting their reputation, which is a serious blow in a profession where image carries so much weight.
Patrycja Gierdal, adwokat, Intellectual Property practice, Tomasz Kisiel, Edward Balaban, Competition & Consumer Protection practice, Wardyński & Partners
