What Duty of Care Does a Brand Have When Sending an Influencer a Product Sample With a Real Safety Risk?

Yes — sending an influencer a product sample already counts, legally, as placing the product on the market, even when the sample is free, marked "not for resale", or sent months before public launch. GPSR (the EU's product safety regulation), the Cosmetics Regulation and EU food law all define "making available on the market" broadly enough to cover a single free sample handed to one person. The practical result: the safety documentation the law requires for your specific product category has to be in place before the sample leaves your hands — not just before the product reaches shelves.

This is practical guidance from Make Influence, not legal advice. Use it to understand when your own safety duties actually start — get the specific assessment of your own product and risk category from a lawyer or regulatory advisor.

Why a free sample counts as placing a product on the market

It's a common assumption that a product's statutory safety requirements only start once it goes on sale. That's not how any of the three regimes a risky sample typically falls under actually work — all three define "placing on the market" or "making available on the market" broadly enough to cover a single free sample sent to one influencer:

In other words: a pre-launch sample sent to an influencer for an honest review, before the product is even for sale, meets the legal definition of placing the product on the market under all three regimes. That doesn't make the influencer responsible for anything — see the section below on what it doesn't change — but it does change, materially, when your own documentation duty as a brand actually begins.

Category by category: which regime applies, and what has to be ready

Food and supplements with allergens

Food — including dietary supplements — is explicitly excluded from GPSR's scope and regulated separately under food law. Article 14 of the General Food Law Regulation states that food may not be placed on the market if it is unsafe, and as shown above, that duty also applies to a single free sample. For allergens specifically, the EU's Food Information to Consumers Regulation (Regulation (EU) No 1169/2011) requires all 14 legally recognised allergens to be labelled on the packaging itself — even when the product never reaches ordinary retail, and even if you verbally flag the ingredient to the influencer. A verbal warning doesn't substitute for the mandatory label; it's an addition to it, not a replacement. In Denmark, Fødevarestyrelsen enforces this area; see dietary supplements and influencer marketing: what Danish food advertising law requires for the broader question of which health claims may be attached to the product itself — a separate question from the physical safety this article covers.

Cosmetics

Cosmetic products are governed by the Cosmetics Regulation, not by GPSR's general regime for risk analysis and technical documentation (GPSR only applies "in so far as there are no specific provisions with the same objective" elsewhere in EU law — and for cosmetics, there are). The Cosmetics Regulation requires a designated "Responsible Person" to ensure the product has undergone a safety assessment, that a Cosmetic Product Safety Report (CPSR) has been prepared, and that the product has been notified in the EU's Cosmetic Products Notification Portal (CPNP) — all of this before the product is placed on the market. Because the Cosmetics Regulation's own definition of "making available on the market" also covers free supply (see the table above), the practical consequence is this: a cosmetics sample sent to an influencer before the CPSR is finished and the product is CPNP-notified isn't an "early marketing activity" — it's a sample sent out before the legally required safety documentation existed at all. In Denmark, the Danish Environmental Protection Agency's Chemicals Inspectorate (Miljøstyrelsens Kemikalieinspektion) enforces the cosmetics area.

Baby and childcare products (outside toys)

Toys have their own dedicated EU regime (the Toy Safety Directive), but most other childcare articles — baby carriers, soothers, high chairs — that aren't classified as toys have no equivalent dedicated directive. For those, GPSR's general regime applies in full, because no specific EU rules with the same objective exist for that product type. That means the manufacturer's duty under GPSR Article 9 — to carry out an internal risk analysis and draw up technical documentation "before placing their products on the market", and to keep it for at least 10 years — already has to be satisfied by the time the first physical sample leaves the company, whether the recipient is an ordinary consumer or an influencer testing the product ahead of launch. Many childcare items are also covered by their own harmonised EU safety standards, which give a presumption of conformity even though there's no dedicated directive comparable to the one for toys — but that presumption depends on the standard actually having been applied and documented, not just on the product "looking safe".

What this doesn't change: the influencer doesn't inherit the brand's duty

It's worth being precise here: none of the above shifts the brand's own safety duty onto the influencer. GPSR's, the Cosmetics Regulation's and food law's obligations attach to the manufacturer, importer or "Responsible Person" — not to the person receiving and testing the product. An influencer who receives a sample without knowing the underlying safety documentation is missing doesn't personally carry the legal liability for that gap; the brand does. See who's liable for a defective product an influencer recommended? for the same underlying point applied to an already-launched, defective product — this article covers the duty that exists before anyone has recommended anything publicly at all.

It also doesn't change what happens if something goes wrong after the product has launched more broadly: see what happens to an influencer campaign when the product gets recalled? for that operational notification duty. This article sits before both of those questions — it's about what has to be in place before either scenario can even arise.

Checklist: before you send a risky sample to an influencer

• Identify the risk category first. Is the product food/a supplement, cosmetics, a childcare item — or more than one at once (a children's cosmetics line, for instance)? That determines which regime applies.
• Confirm the category's documentation is actually finished, not just started. A CPSR still being drafted, a risk analysis that's "nearly done", or an allergen list that's "still being checked" isn't finished documentation.
• Don't assume "not for resale" or "pre-launch" exempts you. As shown above, that isn't how any of the three regimes define their own scope.
• Put the legally required labelling on the physical sample itself — not just in a cover note or a verbal message. This matters most for allergens, where the law requires labelling on the packaging itself.
• Keep a record of who received which sample, and when. This is the same logic as food law's traceability requirement, and it becomes invaluable if you need to act quickly later — see the recall article above.
• Put the liability allocation in the contract, not just a verbal understanding. See what to put in an influencer contract for where product safety belongs alongside the other terms.
• If the product already sits in a stricter regulated category — alcohol, finance, pharma — these duties come on top of, not instead of, those rules. See influencer marketing in regulated industries: alcohol, finance and pharma in Denmark.

Decision framework

IF the product is a food or supplement with a known allergen → confirm all 14 legally recognised allergens are stated on the packaging itself before the sample is packed — not only in a cover note to the influencer.

IF the product is cosmetics, and the CPSR or CPNP notification isn't finished yet → hold the sample, regardless of how much pressure there is to hit a launch date — this is exactly the situation the rules are written to prevent.

IF the product is a baby item outside the toy category → confirm the internal risk analysis and technical documentation required under GPSR Article 9 are complete, even though the product is still in a pre-launch phase.

IF you're unsure which category the product actually falls into (a supplement drink with a cosmetic claim on the packaging, for instance) → get it clarified with a regulatory advisor before the sample ships — not after.

Worked example (hypothetical)

The figures below are a made-up example to illustrate the point — not a real case, and not a Make Influence customer.

A skincare brand develops a new facial serum and wants 20 micro-influencers to test it three weeks before public launch, as part of a "first to market" campaign. The marketing team assumes that because the product isn't for sale yet, there's plenty of time to finish the CPSR and the CPNP notification, as long as it happens "before the launch date". In reality, the Cosmetics Regulation's own definition of "making available on the market" means the 20 samples sent to the influencers already legally place the product on the market — three weeks before the brand itself believed the requirement kicked in. If one of the 20 influencers has a skin reaction in that intervening period, the brand has a product on the market without the legally required safety documentation in place — not necessarily because the product is dangerous, but because the documentation proving it's safe didn't exist yet when the sample was sent.

FAQ

Does the same apply if the sample is marked "for internal use only" or "not to be shared"?

Yes. None of the three regimes tie their scope to how the sample is labelled or what sharing agreement exists — they tie it to whether the product was actually supplied for use, consumption or distribution, whether for payment or free of charge.

Does it still apply if the influencer never ends up posting about the product at all?

Yes, for the question of whether the product was placed on the market. Whether the influencer subsequently posts doesn't affect whether the delivery of the sample itself already met the definition — it's the delivery itself, not the resulting post, that triggers the duty.

What if the product is an early prototype that never becomes a real product?

That doesn't change the legal analysis itself, but in practice the risk is greatest once a sample that a consumer could physically use leaves the company. An internal test product that never leaves the company's own premises doesn't raise the same question as a sample physically shipped to an outside influencer.

Does the influencer carry any liability if they're harmed by an unsafe sample?

The statutory safety duties in GPSR, the Cosmetics Regulation and food law attach to the brand as manufacturer, importer or Responsible Person — not to the influencer as recipient. An influencer can, in specific cases, become more directly involved legally if their own name or brand ends up on the product — see the article on who's liable for a defective product an influencer recommended for that specific exception.

Should we also have a written agreement with the influencer about the sample itself?

It isn't a legal requirement specific to product safety, but it's good practice to put the liability allocation in writing as part of the ordinary campaign contract, so it's clear who does what if something goes wrong regardless.

Does this apply differently if the influencer is based outside Denmark but receives the sample from a Danish brand?

GPSR, the Cosmetics Regulation and the General Food Law Regulation are all EU regulations that apply directly across every EU member state, so the underlying duty doesn't change within the EU/EEA. If you send a sample to an influencer outside the EU/EEA, that country's own rules may come into play on top of the European ones — get that checked specifically if it's relevant to your campaign.

Make Influence's operational perspective

In our experience, the most common mistake isn't a brand deliberately disregarding safety documentation — it's that "pre-launch" and "free sample" get treated, without anyone quite deciding it, as a grey zone where the ordinary rules don't fully apply yet. They do, in fact, apply from the day the first physical sample leaves the building. Our clear recommendation is to treat "send samples to influencers" as an ordinary launch activity for safety purposes — with the same documentation standard as a full public launch — rather than as an early, informal phase where the requirements aren't yet relevant.