Competition law for influencers: advertising statements, sweepstakes and discount codes legally secure
Not only the marking counts, but also what you say. We check advertising statements, sweepstakes and campaigns before they become a cease-and-desist letter risk.
- Specialist lawyers for intellectual property law
- Review of Health Claims, Cosmetics and Financial Advertising
- Defense and enforcement of UWG claims
Fair competition also applies to social media
The law against unfair competition (UWG) protects consumers and competitors from unfair business practices. For influencers, it is far more than the labeling requirement. It regulates which statements about products are permissible, how sweepstakes must be designed, when price and discount information is misleading and that ratings and reaches must not be manipulated.
Strict special rules also apply to certain sectors: Health-related statements about food and food supplements are subject to the Health Claims Regulation, pharmaceuticals and medical devices to the Medicines Advertising Act, Cosmetics of the Cosmetics Ordinance. Financial and gambling advertising is also regulated. Anyone who advertises here carelessly is often liable together with the brand.
Typical situations in which we help
- You should advertise a dietary supplement, weight loss product or skin care.
- They organize a competition or a raffle.
- You use discount codes with statements such as “only today” or “save 50%”.
- They advertise trading apps, crypto or sports betting.
- A competitor works with purchased followers or fake reviews.
- You have received a cease-and-desist letter for misleading advertising.
Legal basis at a glance
Misleading advertising (§ 5 UWG)
Untrue or deceitful information about the essential characteristics of a product is not permitted. These include exaggerated promises of action, false information of origin or fake scarcity. Your own field reports must also be true: Anyone who claims to use a product every day should do so.
Health Claims, HWG and Cosmetics
Health-related information on food is only permitted if it is included in the EU list of approved information (VO (EC) No. 1924/2006). For pharmaceuticals and medical devices, the Medicines Advertising Act prohibits certain forms of advertising, for example with medical histories or specific recommendations. Cosmetics must not promise any drug effects.
Sweepstakes
Conditions of participation must be clear and easily accessible (§ 5a UWG). Participation must not be linked to the purchase of a goods if this puts consumers under inappropriate pressure. In addition, the rules of the platform, which can for example prohibit marks from friends as a condition of participation, must be observed.
Fake reviews and purchased range
The “Black List” in the appendix to § 3 Para. 3 UWG prohibits, among other things, from submitting or commissioning counterfeit reviews and presenting ratings as real consumer ratings without testing. Purchased followers and likes can justify a misleading of the reach of advertising partners.
Practical examples: typical scenarios
We regularly meet the following scenarios in the consultation. They are anonymized and simplified and show how such cases are typically classified. They do not describe any specific mandates and do not promise a specific result.
Supplement Weight Loss Promise
Situation: A fitness influencer advertises a dietary supplement with the statement that it “burn fat while sleeping”.
Legal assessment: The statement is an unauthorized health-related statement and at the same time misleading. Both the influencer and the manufacturer can be warned.
Our approach: We check the briefing, replace the statement with permissible formulations and rules in the contract that the manufacturer is responsible for specified claims.
Countdown in discount code
Situation: A creator announces that a discount code is “only 24 hours to go”, but extends the campaign regularly.
Legal assessment: Untrue information, an offer is only available to a very limited extent, is on the black list and is always not permitted.
Our approach: We adapt the communication and accompany the brand in defending the cease-and-desist letter already received.
Competitors with purchased followers
Situation: An agency states that a competing creator has bought reach and thus gains cooperation.
Legal assessment: This may be misleading to advertising partners. For a claim for injunctive relief, manipulation must be proven and a competitive relationship explained.
Our approach: We secure evidence through analysis tools and check whether a cease-and-desist letter is promising.
That’s how we go
- 1
Initial assessment
You briefly describe the facts to us and send documents such as a contract, cease-and-desist letter or screenshots. We will tell you promptly where you stand and what the next steps will cost.
- 2
Secure evidence and deadlines
We document posts, stories and chat history in court and record all deadlines. Content disappears quickly, especially with social media.
- 3
Set strategy
Together we decide whether negotiation, defense, cease-and-desist letter or contract drafting is the right way. It is always about your reach and your business relationships.
- 4
Implement and enforce
We negotiate, formulate, answer and, if necessary, go to court, also in an urgent procedure. You will regularly be informed of what is happening.
Regarding the costs: Before every step we tell you what it costs. Depending on the case, we charge a flat-rate fee or by hourly rate according to the Lawyers’ Remuneration Act (RVG). If the opponent is obliged to reimburse, for example in the case of a justified cease-and-desist letter, we will claim these costs for you. More on this on our page Fee.
Common mistakes to avoid
- Adopt advertising statements from the brand’s briefing unchecked.
- Start sweepstakes without conditions of participation and data protection information.
- Artificial shortage with “only today” without actual limitation.
- Call products “tested” without using them yourself.
Frequently asked questions about competition law
Am I liable if the brand has given me the statement?
Yes, you are generally liable for your own statements. In the contract, however, you can agree that the trademark exempts you from claims of third parties.
May I advertise gambling or sports betting providers?
Limited. The advertising rules of the State Treaty on Gambling apply, and only permitted providers may be advertised.
Are before and after images allowed?
In the case of cosmetics, be careful if you are not misleading. In the case of medical treatments and certain procedures, the Medicines Advertising Act largely prohibits them.
Deepening: Further information
In the context of influencer, competition law is one of the Transparency and Fairness Rules:
- Advertising must be clearly recognizable.
- Content must not deceive.
- Promotions must be fair and comprehensible.
For influencers, this means: Clear labeling, honest communication and legally secure design of cooperations – Otherwise there is a risk of cease-and-desist letters and image damage.
The Competition law has a very special meaning in the influencer context because it fair competition protects and at the same time the Transparency towards the followers should ensure. cease-and-desist letters in the influencer area in particular almost always revolve around questions of competition law.
Here are the most important points:
1. Marking of advertising
- Influencers must have paid cooperation, product tests, affiliate links or sponsorship contributions Label clearly as an advertisement.
- Violations (e.g. surreptitious advertising) are anti-competitive and can result in cease-and-desist letters from competitors, competition associations or consumer protection organizations.
- Even free product placements may require labeling if a commercial purpose is recognizable.
We are specialist lawyers and are familiar with competition law. Legally secure yourself.
2. Misleading & Deception
- Content is not allowed false promises included, e.g. B. about the effect of cosmetics or dietary supplements.
- Prices must be correct and transparent (e.g. incl. shipping costs if a shop is advertised).
- Hidden advertising or veiled cooperations are a violation of competition law.
3. Comparative Advertising & Call Usage
- Influencers may not make misleading or degrading comparisons with other brands or persons.
- That too Attachments to well-known brands (e.g. due to unfair hashtags or fake cooperation) can represent an inadmissible use of reputation.
4. Sweepstakes & Promotions
- Many influencers use sweepstakes to increase reach.
- There are Clear conditions of participation Mandatory – otherwise there is a risk of violations of competition law and consumer protection.
- Particularly important: transparency in the selection process, terms, profits and responsibility.
5. cease-and-desist letters & Liability
- Violations of competition law often lead to Cease-and-desist letters, cease-and-desist undertaking and expensive disputes.
- Competitors, consumer associations and competition associations are entitled to a cease-and-desist letter.
- Agencies and companies can also be held liable if influencers act in a non-competitive manner on their behalf.
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