Influencer merchandise and the new EU product safety regulation

The influencer market is booming and more and more content creators are discovering the lucrative business with their own merchandise. The opportunity to develop and sell their own products offers influencers an exciting alternative to traditional affiliate marketing. Instead of just receiving commissions for third-party products, they can now build their own brand, express their creativity and create a deeper connection with their community. Own merchandise enables influencers to diversify their sources of income and benefit from the loyalty of their followers. The control over the design, quality and message of the products is entirely in their hands.

However, anyone selling products under their own name must take numerous legal aspects into account. One particularly important point that is likely to surprise many influencers is the new EU Product Safety Regulation (GPSR). While the in-house merchandising business offers great opportunities, it also brings with it new responsibilities that need to be carefully considered. Finding the right balance between entrepreneurial activity and legal compliance is a crucial challenge for influencers who want to enter the merchandising business.

What is the GPSR and who does it affect?

The General Product Safety Regulation (GPSR) is a new EU regulation that will come into force in December 2024. It modernizes the EU framework for product safety and applies to all products on the EU market – including influencer merchandise. The GPSR affects the entire supply chain from the manufacturer to the online marketplace and introduces new obligations to meet the challenges of the growing e-commerce sector:

1. Comprehensive product safety: All products must comply with EU safety standards.
2. Risk analysis and documentation: Manufacturers must carry out internal risk analyses and prepare technical documentation.
3. Improved traceability: It must be possible to provide information on the origin and distribution of products.
4. Obligation to report accidents: Product-related accidents must be reported to the authorities immediately.
5. EU responsible person: A responsible person based in the EU must be named for each product.
6. Extended recall rules: Detailed rules for product recalls, including consumer information.
7. Digital labeling: Product and safety information can be provided in digital form.

For influencers and small companies that sell their own products, the GPSR means increased responsibility. They must ensure that their products comply with the new requirements, which may involve additional administrative work. To prepare, influencers should:

• Find out about the new regulations at an early stage
• Check your supply chains and ensure that all products comply with EU safety standards
• Prepare the necessary documentation and traceability systems
• If necessary, consult experts for product safety and legal advice

The GPSR aims to improve product safety in the EU and adapt it to the challenges of the digital age. For influencers, it offers the opportunity to strengthen the trust of their customers through demonstrably safe products.

When do influencers fall under the GPSR?

The decisive factor is whether influencers are considered “producers” within the meaning of the GPSR. This is the case when they sell products under their own brand. For example, when a streamer has T-shirts produced with their own design and logo and sells them directly to fans. In this case, all requirements of the GPSR must be met, including ensuring product safety, carrying out risk analyses and preparing technical documentation.

The GPSR defines a manufacturer as any natural or legal person who manufactures a product or has a product developed or manufactured and markets this product under their own name or brand. Influencers who develop their own merchandise lines and sell them under their own name therefore clearly fall into this category.

The situation is different if a third party sells the products and only the influencer’s logo or name appears on them. In this scenario, the main responsibility lies with the actual manufacturer or importer. However, influencers should also be careful in such collaborations and ensure that their partners meet the GPSR requirements in order to avoid reputational damage.

Although selling your own merchandise under your own brand offers exciting business opportunities for larger streamers and influencers, it also entails more obligations. This includes the appointment of a responsible person in the EU, ensuring the traceability of products and compliance with reporting obligations in the event of product safety problems. In addition, influencers as manufacturers must ensure that their products comply with EU safety standards and provide all the necessary information for distance selling.

What are the obligations for influencers?

The complexity of the GPSR requirements varies considerably depending on the product type. For simple products such as T-shirts, implementation is generally less complex:

• Risk analysis: For T-shirts, this is mainly limited to chemical safety to ensure that no harmful substances have been used.
• Technical documentation: Basic information on materials, manufacture and care instructions is often sufficient.
• Traceability: Can be guaranteed by simple labeling with batch numbers.

For more complex products such as hardware or electronic devices, compliance with GPSR requirements is much more demanding:

• Comprehensive risk analyses: Consideration of electrical, mechanical and thermal risks as well as possible software errors.
• Detailed technical documentation: circuit diagrams, software specifications, EMC tests and safety certificates are required.
• Extended traceability: serial numbers and possibly electronic component tracking systems.
• Additional safety features: Such as overheating protection or child safety locks.
• More complex instructions for use: With detailed safety instructions and warnings.

Influencers who want to sell more complex products under their brand should therefore carefully consider whether they can handle the associated responsibilities and increased effort. In such cases, it may be advisable to work with experienced manufacturers or specialized consultants to ensure compliance with all GPSR requirements.

How can influencers prepare?

To meet the requirements of the GPSR, influencers should act early and strategically:

1. Get a comprehensive overview of the regulation and its specific impact on your business model.
2. Conduct a thorough analysis of your product range and supply chains to identify potential risk areas.
3. Implement robust traceability and documentation systems that meet the new requirements.
4. Consider working with specialized service providers or agencies that have expertise in product safety and compliance.

It is important to emphasize that although the GPSR brings new challenges, there is no need to panic. Rather, it offers the opportunity to raise your own merchandising business to a more professional level and strengthen customer confidence. For many influencers, it could make sense to work with experienced partners who can fulfill the complex requirements efficiently. This allows influencers to focus on their core competencies while benefiting from the advantages of a secure and compliant merchandising business. Ultimately, a well-implemented GPSR strategy can become a competitive advantage and promote the long-term stability of the business.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.