As part of our blog series on the EU Commission’s (EC) Digital Fairness Fitness Check and a potential new EU legislative proposal, the Digital Fairness Act, we took a closer look at ‘personalisation’ at the end of last year. In our first blog for 2025, we analyse the results of the Digital Fitness Fairness Check regarding social media commerce with a particular focus on influencer marketing.
What are concerns about 'social media commerce and influencer marketing'?
The Digital Fairness Fitness Check has scrutinised social media commerce and influencer marketing as these types of digital marketing become increasingly important for consumer transactions. Although direct purchase features such as buy buttons and shopping carts are not yet widely implemented in European markets, social media plays an important role in helping consumers discover, explore and purchase new products and services. Surveys considered as part of the Digital Fitness Check show that around 60% of retailers have reported using social media in recent years. Meanwhile, around 75% of consumers have come across influencer promotions and more than 50% say they have bought products or services recommended by these influencers.
While these new types of (product) marketing in the online world are not problematic per se, a lack of transparency regarding advertisements is a source of concern. In practice, for example, many influencers are engaged in advertising but do not always label it as such or do so in a way that is difficult for consumers to identify. Influencer marketing is often more subtle than traditional online advertising, making it more difficult for consumers to recognise the commercial nature of content. Although some influencers use disclaimers, other influencer content may still appear to consumers as a personal recommendation. This effect is particularly strong where influencers develop a close relationship with their followers and are perceived as particularly trustworthy. Consumers may therefore be under a (false) impression that an influencer genuinely believes in a product rather than being paid to promote it.
In addition to these challenges regarding transparency, concerns can also arise in relation to the advertisement of problematic content. Influencers may, for instance, promote products and services that are potentially misleading or even dangerous to consumers. Examples include dubious financial services or health products advertised with exaggerated (or outright baseless) claims. This is particularly problematic if influencers with a young audience promote products that are unsuitable for minors, such as alcoholic beverages, unhealthy foods or e-cigarettes.
What are the main results of the Digital Fitness Check?
The Digital Fairness Fitness Check concludes that concerns about lack of transparency and advertising of problematic products are not merely theoretical, but correspond to the perception of consumers in practice:
- In a public consultation, around 75% of consumers noted a lack of transparency in paid promotions by social media influencers, with 55% of respondents in the 2023 Consumer Conditions Scoreboard (CCS) expressing similar concerns. In the Fitness Check consumer survey, 45% of consumers observed that the content they were viewing appeared to be a paid promotion or advertisement, yet this was not clearly indicated by the website or app. This issue was notably more prevalent among younger age groups. The Digital Fitness Check further refers to studies from Denmark and the Netherlands underscoring the difficulty in recognising commercial content, even with disclosure labels, due to inadequate prominence and clarity.
- Regarding the advertising of possibly problematic content, such as specific products or services promoted or sold through influencers, an European Consumer Organisation’s (BEUC) survey of 2023 found that around 45% of consumers have seen influencers promoting scams or even dangerous products. The Digital Fairness Fitness Check also refers to BEUC’s 2021 survey which shows a strong influence of aggressive marketing on children’s behaviour and that particularly children are targeted by unhealthy food and beverage promotions.
The report indicates that EU consumer law provides a general legal framework to address transparency issues in influencer marketing. It notes, in particular, that the Unfair Commercial Practices Directive (UCPD) addresses the lack of disclosure of commercial communications as well as misleading claims, and prohibits buying fake likes and followers. Additional guidance by the EC in the past few years clarified the roles of influencers and brands, including detailed requirements for labelling paid content.
New legislation, including the Digital Services Act (DSA) and the Audiovisual Media Services Directive (AVMSD), enhance ad transparency requirements. The DSA, for instance, mandates that platforms provide tools for declaring commercial content (Article 26(2)), while the AVMSD restricts certain ad content and requires protections for minors (Article 9(1), Article 28b(1)). In addition, the role of influencers has been identified in the Retail Investment Strategy that is currently under negotiation, with the European Parliament in particular looking for much tighter requirements on influencers promoting financial services products. We will need to await the outcome of the negotiations to see where this comes out in final form, but it shows the level of interest and scrutiny by EU policymakers.
In addition, several Member States have implemented or updated laws defining specific obligations for influencers and traders that collaborate with them. A 2023 French legislation, for instance, introduced prohibitions on influencer marketing related to plastic surgery/injections, pharmaceutical products, medical devices, nicotine, certain financial investments, and wild animals. Gambling and sports betting/prognostication are permitted but restricted for minors. Similarly, in 2022, German law was amended to introduce a legal presumption that commercial communications by influencers are paid unless the influencer can prove otherwise.
The EC concludes, however, that the challenges regarding transparency and problematic content still persist despite this existing legal framework. It notes that considerable legal uncertainty remains, for instance, regarding the required standard and modalities of ad disclosures. Different courts, authorities, national laws and guidelines offer different interpretations about aspects such as the exact phrase to be used and the necessary visual prominence.
The EC notes in its summary, that ‘while EU consumer law establishes a general legal basis for tackling transparency concerns regarding influencer marketing, it is currently insufficiently precise in addressing all concerns raised by social media commerce, which contributes to a risk of regulatory fragmentation and legal uncertainty’.
Taking action: Potential countermeasures
The EC suggests for ad disclosures, rather than attempting to align numerous differing national court decisions and guidelines, it may be more effective to establish EU-wide examples of acceptable ad labels. This could be achieved through standardisation within the DSA for online intermediaries (such as social media platforms) or more broadly within EU consumer law to apply to all traders.
According to a public consultation among stakeholders, 58% supported clearer definitions of influencers and content creators, along with specifying the obligations of parties involved (influencers, agencies, brands, and platforms). Some stakeholders advocated for holding agencies and brands responsible for ensuring influencers’ compliance with EU laws, which could encourage partnerships with compliant influencers and clearer contractual guidelines. Additionally, stakeholders recommended codifying certain interpretations from the EC’s UCPD Guidance to enhance legal clarity. Regarding potentially harmful content, BEUC advocates for the prohibition of influencer marketing in areas similar to those listed under the French law referenced above, specifically targeting the promotion of alcohol, gambling and betting, medical products and procedures, as well as unhealthy foods directed at children.
It remains to be seen which of these proposals will ultimately be considered for a potential Digital Fairness Act. For the time being, stakeholders may find it helpful to consult the Influencer Legal Hub, developed by the Commission in 2023. This resource offers guidance on compliance with EU consumer law and includes practical recommendations, such as frequently checking the Safety Gate Portal to verify that products they promote have not been flagged as unsafe.
