The European Commission (“Commission”) is working on a new EU consumer protection law called the Digital Fairness Act (“DFA”) to better protect consumers in the digital space.  The DFA is expected to regulate, among other things, influencer marketing. 

With EU consumer protection watchdogs starting to bring cases against companies whose products or services are promoted by influencers (see for example here), the DFA’s provisions may apply not only to influencers, but also to companies that deploy or use influencers, to ensure that advertising practices are fair and transparent.  This blog post explores two key issues that the European Commission is expected to prioritize in its approach to influencer marketing.  It also provides a brief overview of the French legal framework in this area, which some expect to serve as a model for the EU’s forthcoming rules in this area.

Key Issues

The Commission’s Fitness Check in preparation for drafting the DFA identifies the following two key issues with influencer marketing:

• lack of transparency about paid promotions by social media influencers; and
• safety concerns relating to the content promoted by social media influencers.

The Fitness Check includes several statistics to demonstrate the prevalence of these issues.  For example, it mentions that 74% of consumers reported a lack of transparency in the paid promotion of products by social media influencers.  The Commission’s comprehensive Consumer Protection Survey published in March 2025 also reports that 47% of EU consumers who participated in the survey said that when searching for or buying products online, they encounter social media “influencers” who appear to have been paid to promote certain products, but do not say so clearly.  The Fitness Check also cites a study that found 44% of consumers have seen influencers promoting scams or dangerous products.

According to the Commission, these problems stem from a lack of specific obligations directed at influencers (such as which products they may not promote and whether or how they must indicate the commercial nature of their content), but also from “legal uncertainty about the applicable rules, including about the responsibilities of other actors in the value chain, such as the brands whose products and services are being promoted (besides that of platforms, regulated inter alia in the [Digital Services Act (‘DSA’)].”  The Fitness Check states that voluntary codes of conduct for responsible marketing are not sufficient to address the problem.

This may suggest that obligations found in the DSA, and potentially the forthcoming DFA, may be imposed not only on influencers, but also on the companies that engage them — and possibly on the platforms where this content appears.  Currently, it remains unclear to what extent the EU’s rules on marketing under the Unfair Commercial Practices Directive (“UCPD”) — which require advertising to be clearly identified as such — apply to influencer marketing.  However, the Commission’s 2021 guidance on the UCPD states that:

“Depending on the circumstances of the case, the breach could be attributed both to the influencer or to the trader/brand that has engaged the influencer and benefits from the endorsement. The presence of editorial control by the trader is not necessary to trigger the application of these rules but could serve as a factor in the determination of its liability. The trader/brand is liable for the breaches of the above-mentioned provisions and in particular the requirement of exercising professional diligence under Article 5 [of the UCPD].”

Meanwhile, online platforms—including social media platforms—are already subject to specific transparency obligations under the DSA.  For instance, Article 26 of the DSA requires platforms to offer users (including influencers) a functionality to declare whether their content includes commercial communications.  The platforms must also ensure that other users can easily and clearly recognize this in real time, including through prominent labelling.  Moreover, under Article 39, very large online platforms must maintain and publish a repository of all advertising displayed on their services.

The Commission is expected to draw on existing national approaches—both from EU Member States and, potentially, from non-EU countries—when shaping comprehensive EU-level rules on influencer marketing.  France, having adopted dedicated legislation in this area already, is likely to serve as a key reference point for the forthcoming EU framework.  We provide a brief overview of the French law below. It is worth noting, however, that other Member States (such as Germany) have also begun updating their consumer protection laws to specifically address influencer marketing.  These developments are beyond the scope of this blog post.

The French Model

France was one of the first EU Member States to take concrete steps to address the risks associated with influencer marketing.  For example, in 2022 and 2023, the French consumer protection authority (DGCCRF) audited over 300 influencers, finding that more than half failed to meet transparency requirements—and, in the most serious cases, even promoted illicit products or services.

In response to these concerns, France adopted Law No. 2023-451 in June 2023, which establishes a regulatory framework for influencers and their agents.  The law defines influencers broadly as individuals or entities who, in exchange for payment, use their reputation to communicate content to the public electronically for the purpose of promoting, directly or indirectly, goods, services, or any cause.

Key provisions of the law include:

• a prohibition on promoting certain categories of goods and services, such as specific health-related or financial products, nicotine products, and others;
• transparency and contractual obligations, including the requirement to clearly label sponsored content and enter into a written contract with the advertiser; and
• sanctions for non-compliance, including criminal penalties (e.g., imprisonment and fines up to EUR 300,000) and a possible ban on carrying out influencer activities.

The DGCCRF has announced its intention to continue monitoring influencers and, where necessary, impose sanctions under its expanded enforcement powers provided by the new law.

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Covington & Burling regularly advises companies on all aspects of EU consumer law and closely monitors the development of new consumer legislation, such as the expected forthcoming Digital Fairness Act.  We look forward to assisting you with your EU consumer compliance needs.