It has been a tumultuous few weeks for social media influencers in Australia. As a relativity new area, the influencer economy has begun to come under more scrutiny from government bodies with the introduction of new regulations.

Influencers within the paid skincare area will have to change tact as new laws through the Therapeutic Goods Administration (TGA) ban influencers promoting skin and healthcare products. The law, which will come into effect on 1 July 2022, states that it will be illegal for influencers to receive cash or sample products in exchange for reviews across a range of products. These include:

• Sunscreen

• Protein powders

• Vitamins

• Supplements

• Skincare products

In addition to products, language restrictions have been placed on influencers within this field. Statements such as “removes toxins” and “fades age spots” are not allowed by the TGA, as well as claims of supposed health benefits of certain protein powders and supplements.

Further scrutiny is coming from the Australian Competition and Consumer Commission (ACCC). The ACCC have this month released it’s compliance and enforcement priorities for 2022/23. ACC Rod Sims stated that there will be a focus on influencers promotion of products through “manipulative techniques to exploit or pressure consumers, and other practices that seek to distort or disregard their consumers choice in the digital economy”.

Specifically, the ACCC compliance and enforcement priorities for 2022/23 that influencers, agencies and businesses need to aware of are:

• Manipulative or deceptive advertising in the digital economy

• Environmental claims and sustainability

• Social media influencers who do not disclose commercial relationships (including paid promotions)

• False promotions of environmental or green credentials

By now, influencers should be on top of disclosing commercial relationships between themselves and brands promoting products and services, as failing to do will run afoul of Australian Consumer Law (ACL).

Due to the new compliance and enforcement priorities stated above, the ACCC will now actively take action in relation to breaches such as false or misleading conduct online.

The following penalty amounts are a reminder of the cost of failing to adhere to ACL and ACCC requirements:

Infringement Notices which might be issued by the ACCC for failing to disclose a sponsored post:

• $13,320 for a corporation

• $133,200 for a listed company

• $2,664 for an individual

The maximum pecuniary penalty that can apply for failing to disclose a sponsored post:

• $500,000 for an individual

• For a corporation the greater of;

• $10 million

• 3 x the value of the benefit obtained from the offense (if the value can be calculated)

• If the value cannot be determined, 10% of the corporation’s annual turnover in the preceding 12 months

Protect yourself

As an influencer there are several steps you can take to protect yourself from falling afoul of new laws and restrictions.

1. Structure

   Ensure your business and asset holdings are properly structured in order to maximise asset protection.

2. Advice

   Receiving the right advice could mean the difference between a successful promotion and a large fine. When in doubt, contact you lawyer. If you don’t have a lawyer, contact us at Gunderson Briggs and we can put you in touch with a lawyer to assist. It is better to be safe than sorry.

3. Education

   It is imperative that influencers are aware of and up to date with new legislation regarding changing advertising laws. This is crucial, especially if you are new to influencing and beginning to post paid promotions and establishing relationships with businesses.