Q: If I just give a free product to an influencer and they post about it, is that really considered advertising?
"Yes. Even if you don’t pay them money, a free product is seen as a benefit. That means the post counts as advertising and must be clearly marked as such, otherwise both you and the influencer can get in trouble."
Francesco Cattaneo
What’s happening and why CEOs of small companies should care
For micro and small enterprises, influencer marketing feels like the shortcut to visibility: one post on Instagram, TikTok, YouTube, or LinkedIn and your product is in front of thousands. The trap? Even sending a free sample without a contract can trigger legal duties.
Dutch law is unambiguous. Under the Nederlandse Reclame Code (NRC) and the Social Media & Influencer Marketing Code (RSM), every form of benefit, money, gifts, discounts, free use, turns content into advertising. And advertising must be immediately recognisable as such.
If it isn’t, it risks being labelled “disguised advertising.” Complaints often come not from regulators but from competitors. The Reclame Code Commissie (RCC) has a track record of siding with them, leaving companies with reputational damage and public rulings to explain.
Disguised Advertising on Social Media
When “just a visit” becomes a commercial
The law doesn’t care whether you meant it to be advertising. If an influencer posts positively about your brand and gets something in return—before or after, written or not, the content is treated as advertising. And advertising must be transparent at the moment the viewer sees it.
Case in point: the bedding store vlog
- An influencer posted a YouTube video after visiting a bedding store.
- Once the video was live, the store rewarded them with a discount on a bed and embedded the video on its website.
- There was no disclosure anywhere.
- RCC ruling: this was advertising and should have been labelled. The influencer got a benefit, the store reused the content commercially, and the audience was misled.
Lesson: if your brand benefits, you carry responsibility. Even if you didn’t ask for the post, you are expected to ensure proper disclosure.
Influencer & Hidden Marketing Risks
“#collab” doesn’t cut it anymore
Many influencers believe that vague tags like #collab, #partner, or #nospon are enough. They aren’t. The RSM requires unambiguous wording.
To comply, disclosure must be:
- Explicit: use #advertentie or “betaalde samenwerking met [Brand]”
- Visible: not buried in a sea of hashtags
- Platform-native where possible: e.g. Instagram’s “Paid partnership with”
Creative tricks don’t escape the rule. Advertorials, product “challenges,” or “just-for-fun” shout-outs all count as advertising if there’s a benefit involved.
Case in point: free jewellery and the #nospon tag
- An influencer received jewellery in exchange for a post.
- They used #nospon, claiming independence because there was “no payment.”
- RCC ruling: misleading. A free product is still a benefit. By suggesting otherwise, the influencer breached transparency rules.
Lesson: you are jointly responsible. If the influencer misleads, your brand is accountable. Ambiguity is no defence.
The Practical Impact for Dutch MSEs
Even without a contract, your company is on the hook. The RCC doesn’t ask for evidence of written agreements; it looks at benefit and audience perception.
Risk map for CEOs:
| Scenario | Risk | RCC View |
|---|---|---|
| Gifted product with no disclosure | Legal + reputational | Advertising, must be labelled |
| Vague tag (#collab, #partner) | Deceptive | Not sufficient |
| Tag #nospon but receive product | Deceptive | Sponsorship, misleading tag |
| Embedding influencer’s content on brand site | Commercial use | Confirms collaboration, triggers ad rules |
| No agreement or influencer guidance | Governance gap | Weakens defence in complaints |
Staying Ahead of the Curve
Influencer marketing can be powerful, low-cost, high-reach, emotionally resonant. But the rules don’t bend for small businesses. The moment you give, promise, or reuse anything of value, you enter the legal definition of advertising, with all the duties it carries.
Transparency is not optional. Treat it as strategy: set clear rules with influencers, monitor execution, and never assume they know compliance by instinct.
Actionable Checklist for Dutch MSEs Using Influencers
- Require explicit disclosures (#advertentie or “betaalde samenwerking met [Brand]”) early and visibly.
- Prohibit vague or misleading tags (#collab, #nospon, #partner).
- Put it in writing: draft a brief with disclosure rules, even for gifts.
- Check before you share: never embed or repost non-compliant content.
- Watch the market: you can challenge competitors exploiting hidden advertising with the RCC.
For micro and small enterprises, credibility is oxygen. Don’t waste it on avoidable mistakes. In influencer marketing, compliance is not a bureaucratic burden, it’s the price of playing fair and staying trusted.
Head of Compliance and Legal Department
Francesco Cattaneo is Head of Legal & Compliance at XTROVERSO™. A qualified Italian lawyer and CIPP/E-certified privacy expert, he bridges civil law, digital regulation, and strategic governance. His writing challenges the false divide between law and innovation, showing how clear rules, when well-crafted, are not limits but instruments of freedom, protection, and long-term design.
