What counts as “advertising” under the new sutema rule?

If the brand is objectively involved in shaping the post—through instructions, approval rights or incentive-for-post arrangements—the post is treated as the advertiser’s own advertisement.

How must influencers disclose paid posts?

Use clear, prominent terms such as 「広告」 or 「PR」 at the start of the post; vague tags or buried hashtags may fail the ‘easy to discern’ standard.

Are influencers themselves fined?

The CAA’s administrative orders target the advertiser, but influencers face contractual penalties and reputational damage if they breach disclosure terms.

Consumer Protection

“Sutema” No More: Japan’s 2023 Stealth-Marketing Rules & How to Comply

Japanese Attorney at Law - Bengoshi L.L.

05 May 2025 • 7 min read

TL;DR

Since 1 Oct 2023 Japan bans undisclosed influencer promotions (“sutema”) as a misleading representation under the Keihyōhō.
Two elements trigger liability: (1) the post is deemed the advertiser’s own ad and (2) consumers cannot readily tell it’s advertising.
Brands must embed clear 「広告 / PR」 disclosure in influencer posts, update contracts and monitor compliance to avoid CAA cease-and-desist orders.

Table of Contents

What is Stealth Marketing (Sutema)?
The Problem: Why Regulate Sutema?
The Legal Framework: Keihyōhō and the New Designation
Key Elements of Japan's Sutema Regulation
Who is Legally Responsible?
Consequences of Violating the Sutema Regulation
Practical Compliance for Businesses
Conclusion

In the age of social media and influencer marketing, the line between organic recommendations and paid promotions can often blur. This ambiguity has led to increased regulatory scrutiny worldwide on "stealth marketing"—advertising disguised as genuine third-party opinions or experiences. In Japan, this practice is commonly known as sutema (ステルスマーケティング or ステマ). Recognizing the potential for consumer deception, Japan implemented specific regulations targeting sutema, effective October 1, 2023, under its primary consumer protection law governing advertising. For businesses leveraging influencer marketing or other third-party endorsements in Japan, understanding these rules is now essential.

What is Stealth Marketing (Sutema)?

Sutema refers to marketing or promotional activities where a business relationship exists between the advertiser and the party making a statement (like an influencer, blogger, or reviewer), but this relationship is hidden from the audience. The content appears as if it's an independent, unbiased opinion, review, or personal experience, when in fact it's a form of advertising paid for or incentivized by the business promoting the product or service.

The Problem: Why Regulate Sutema?

The core issue addressed by the regulation is consumer deception. Japan's Consumer Affairs Agency (CAA), which spearheaded the regulation, highlighted that consumers generally evaluate advertisements differently than they do independent third-party reviews or user-generated content. When consumers recognize content as advertising, they tend to apply a degree of skepticism, understanding that it inherently aims to persuade.

However, if promotional content is disguised as an organic post, consumers may mistakenly believe it reflects the genuine, unbiased view of the poster. They are less likely to critically assess the claims or recognize potential exaggerations. This lack of transparency hinders consumers' ability to make autonomous and rational purchasing decisions based on accurate information. While sutema wasn't directly illegal before unless the content itself was factually misleading (e.g., false claims about quality or price), the practice of concealing the commercial intent was identified as problematic for consumer choice.

The Legal Framework: Keihyōhō and the New Designation

The regulation was implemented under the Act against Unjustifiable Premiums and Misleading Representations (不当景品類及び不当表示防止法, Futō Keihinrui oyobi Futō Hyōji Bōshi Hō), commonly known as the Keihyōhō (景品表示法). This Act broadly prohibits misleading representations concerning goods and services.

Article 5 of the Act prohibits specific types of misleading representations, including:

Misrepresentations concerning quality (優良誤認, yūryō gonin) (Item 1)
Misrepresentations concerning price or other transactional advantages (有利誤認, yūri gonin) (Item 2)
Other representations designated by the Prime Minister (via the CAA) as likely to mislead consumers (Item 3)

Effective October 1, 2023, the CAA utilized Article 5(3) to formally designate sutema as a prohibited misleading representation (Cabinet Office Notification No. 19 of 2023 - 令和5年内閣府告示第19号).

Key Elements of Japan's Sutema Regulation

According to the CAA's official guidelines (Un'yō Kijun - 運用基準) published alongside the designation (March 28, 2023), a representation constitutes prohibited sutema only if both of the following conditions are met:

1. It is Considered an "Advertisement by the Business" (Jigyōsha no Hyōji)

This is the crucial first step. Even if the content appears to be created and posted by a third party (like an influencer), it must legally be considered an advertisement by the business whose product/service is being promoted. The guidelines state this condition is met when "the business is recognized as being involved in determining the content of the representation."

Whether the business was "involved" is judged objectively based on the circumstances. Key factors indicating involvement include:

Explicit Instructions/Requests: The business explicitly asks or instructs the third party to make a post with specific content.
Implicit Control/Influence: There's a relationship or communication pattern where the business can practically influence or dictate the content, even without explicit instructions (e.g., requiring pre-approval, providing detailed posting manuals, setting specific positive/negative points to include/exclude).
Clear Connection Between Benefit and Posting: Providing payment, free products, event invitations, or other economic benefits where the context clearly implies an expectation or obligation for the third party to post favorably.

Conversely, it might not be considered the business's advertisement if:

The third party posts entirely voluntarily with no prior request, instruction, or significant communication from the business.
The business merely provides unsolicited, low-value samples without any expectation or request for a review or post.
Despite some interaction (e.g., receiving a standard press release) or minor benefit (e.g., attending a general product launch event open to many), the content objectively reflects the third party's genuine, independent opinion and decision to post.

2. It is "Difficult for General Consumers to Discern it as an Advertisement" (Ippan Shōhisha ga... Hanbetsu suru Koto ga Konnan)

If the representation is deemed an advertisement by the business (meeting Element 1), it then becomes prohibited sutema only if it lacks clear disclosure making its promotional nature apparent to the average consumer.

The assessment is based on the overall impression of the representation. The CAA guidelines emphasize that disclosure must be clear and understandable. Practices that obscure the advertising nature are problematic, such as:

Using very small font sizes or light colors for disclosures.
Placing disclosures in inconspicuous locations (e.g., buried deep in text or hashtags).
Making disclosures that are lengthy or ambiguous.
Using wording that contradicts the promotional nature (e.g., writing "Ad" at the start but then phrasing the entire post as a purely personal opinion).

The CAA recommends using clear and unambiguous terms like 「広告」 (kōkoku - advertisement), 「宣伝」 (senden - promotion/publicity), 「プロモーション」 (puromōshon - promotion), or 「PR」. These should be placed in a way that is easily noticeable (e.g., at the beginning of the post).

Ambiguity arises with other terms. CAA surveys suggest terms like 「タイアップ」 (tai-appu - tie-up), 「提供」 (teikyō - provided/sponsored), or English abbreviations like "AD," "Supported," or "Ambassador" are significantly less likely to be understood as advertising by Japanese consumers compared to 「広告」 or 「PR」. Relying solely on these less clear terms may not meet the "difficult to discern" standard. Similarly, platform-specific tools (like Instagram's branded content tool) might require supplementary clear text disclosure, as consumer recognition of these tools as indicating advertising is not yet universally established.

Who is Legally Responsible?

A critical aspect of Japan's sutema regulation under the Keihyōhō is that the legal responsibility rests squarely on the advertising business – the company whose products or services are being promoted. The influencer or third party making the post is not directly subject to administrative action or penalties under this specific law for failing to disclose the relationship.

However, this does not mean influencers are without responsibility:

Contractual Obligations: Businesses will increasingly require influencers to make proper disclosures contractually. Failure to do so could lead to breach of contract claims from the advertiser.
Reputational Risk: Being associated with undisclosed sutema can severely damage an influencer's credibility and trustworthiness with their audience. Online "flaming" or backlash is a real possibility.
Social Responsibility: There's a growing expectation, both ethically and socially, for influencers to be transparent with their followers about commercial relationships.

Consequences of Violating the Sutema Regulation

If a business's representation is found to constitute prohibited sutema:

Administrative Orders (Sochi Meirei): The CAA can issue an order under Article 7 of the Keihyōhō. This typically requires the business to cease the misleading representation, publicly announce the violation to consumers, and implement measures to prevent recurrence.
Public Disclosure & Reputational Harm: Administrative orders are published on the CAA website and often reported in the media, leading to significant negative publicity and damage to the brand's reputation.
No Surcharges (Currently): A key point is that, unlike misleading representations regarding quality or price advantages (Art. 5(1) & 5(2)), sutema designated under Art. 5(3) does not currently trigger administrative monetary penalties (kachōkin, 課徴金) under Article 8. However, the CAA has noted it may consider introducing surcharges for sutema in the future. (Note: If the content of the sutema post also makes false claims about quality or price, separate penalties for those violations could still apply).
Criminal Penalties: Failure to comply with a CAA administrative order can result in criminal sanctions, including fines or imprisonment (Article 36).

Practical Compliance for Businesses

For businesses engaging influencers or using third-party endorsements targeting the Japanese market:

Assess Business Involvement: Determine if your communication, provision of benefits, or relationship with the third party makes their post legally your "advertisement." When in doubt, assume it is.
Mandate Clear Disclosure: Ensure all promotional content by third parties clearly and conspicuously discloses the commercial relationship. Using 「広告」 or 「PR」 prominently at the beginning of posts is the safest approach.
Update Contracts: Incorporate mandatory disclosure requirements into influencer agreements, specifying the wording and placement. Include consequences for non-compliance.
Monitor Compliance: Implement processes to check if influencers are making the required disclosures correctly.
Employee Posts: Be mindful of social media posts by your own employees, especially those in marketing, sales, or product development roles. If they promote company products/services without clearly identifying their affiliation or the promotional nature, it could potentially be viewed as sutema. Establish internal guidelines for employee social media activity related to the company.
Review Past Content: Audit older sponsored or incentivized posts that remain accessible online. If disclosure is missing and you still control the content or can contact the original poster, add appropriate disclosure or consider removal if that's not feasible.

Conclusion

Japan's introduction of specific sutema regulations under the Keihyōhō reflects a global trend towards greater transparency in digital advertising. While the direct legal obligation falls upon the advertiser, the practical and reputational responsibility extends to influencers as well. Businesses must proactively ensure that any promotional content generated through third parties is clearly identified as such to Japanese consumers. Implementing clear disclosure policies, updating contracts, and monitoring campaigns are now crucial compliance steps to avoid administrative actions and maintain brand trust in the Japanese market.