Influencer Marketing under Heightened Liability: Higher Regional Court (OLG) Cologne Clarifies Corporate Responsibility under Competition Law

By judgment of 11 September 2025 (Az. 6 U 118/24), the Higher Regional Court (OLG) Cologne has further clarified the legal requirements for influencer marketing and has significantly heightened the competition law liability risks for companies. Whilst the decision directly concerns an advertising campaign in the pharmaceutical sector, its effect extends far beyond this and is relevant for all companies that employ social media marketing.

Influencer Reel for OTC Pharmaceutical Product as the Starting Point of the Proceedings

The judgment was based on an influencer campaign for a non-prescription cold remedy. A pharmaceutical company had commissioned a high-reach influencer to advertise the product in a short Instagram reel. The clip was staged emotionally and depicted – typical for the format – an everyday situation in which a noticeable improvement in well-being was suggested following use of the product. In this way, the advertising message was conveyed less through factual information than through imagery, tone and personal experience.

From the perspective of the competing trade association that brought the action, the implementation of statutory mandatory disclosures was particularly problematic. The notice required by the Medicines Advertising Act ("Zu Risiken und Nebenwirkungen lesen Sie die Packungsbeilage und fragen Sie Ihren Arzt oder Apotheker") was not an integral part of the video itself. Instead, it appeared – if at all – only in the accompanying text of the post or via further hyperlinks. The claimant saw this as a breach of competition law and sued the company for an injunction.

Audiovisual Medium Requires Audiovisual Mandatory Information

The OLG Cologne confirmed the decision of the lower court and made clear that an Instagram reel is to be classified as an audiovisual advertising medium. It follows from this that legally prescribed mandatory information ("Zu Risiken und Nebenwirkungen…") must also be perceptible within this audiovisual medium. Mere placement in the text below the video or behind a hyperlink is, in the court's view, insufficient.

The purpose of the statutory notice requirements lies precisely in alerting the consumer directly at the moment of perceiving the advertisement to risks. If the video is played without further clicking, the mandatory text must also be comprehensible without additional action. Otherwise, the protective purpose of the rule would be undermined. According to the court's reasoning, these principles apply regardless of how short the advertising format is or what design constraints it is subject to.

Competition Law Classification and Attribution to the Company

Although the focus of the decision lies in medicines advertising law, the judgment has a clear competition law dimension. The court treats the impermissible design of the advertisement at the same time as an unfair commercial practice. Decisive is that the influencer acted at the behest of and in the economic interest of the company.

Particularly relevant for practice is the fact that the company could not rely on the argument that the specific content of the reel was designed solely by the influencer. Whoever deliberately deploys influencers for the purposes of promoting sales utilises their reach and credibility as a marketing tool and must attribute the concrete implementation of the advertising to itself. This applies at least when – as in the present case – a contractual cooperation exists and the company profits from the campaign.

The panel also upheld an injunction claim on the grounds of § 11 Abs. 1 S. 1 Nr. 2 HWG (advertising with endorsements by known persons). In view of over 130,000 followers on Instagram, a large YouTube channel and millions of views of her music videos, the court clearly affirmed relevant notoriety. Accordingly, advertising with this influencer was impermissible.

Practical Consequences for Companies and Marketing Departments

The judgment makes clear that influencer marketing must legally be treated not as an "extended arm of PR" but as a full-fledged advertising measure. Companies must, already when designing social media campaigns, examine whether statutory information and disclosure obligations can at all be implemented safely under the chosen format. Particularly with very short clips, reels or shorts, this is frequently a challenge but does not absolve them of the obligation to provide complete information.

At the same time, the judgment shows that a purely formal relocation of mandatory disclosures to captions or linked content carries considerable risks. Whoever relies on audiovisual advertising formats must integrate mandatory information in such a way that it is actually perceptible to the average user. Otherwise, not only cease-and-desist letters but also court injunctions with corresponding cost consequences threaten.

Added to this is the question of the selection of the influencer itself. The greater the reach and persuasive effect, the stricter the legal standards can be, particularly in the health sector. Companies are therefore well advised not only to examine the content legally but also to vet advertising carriers and to closely monitor campaigns.

Conclusion

With the judgment of 11 September 2025, the OLG Cologne has made clear that creative social media formats are not legal vacuums. Whoever engages in influencer marketing must observe the statutory rules even in video content and bears responsibility for this as a company.

Our law firm advises and represents companies comprehensively in advertising and competition law, both out of court and in judicial disputes. A particular focus is on advertising law issues in the health sector, including medicines, medical devices and medicines advertising law. We support our clients in the legally secure design of marketing campaigns, in the assessment of influencer collaborations as well as in the defence and enforcement of competition law claims.