Imogen Jones summarises the new guide from ASA and CMA to outline advertising rules which apply to social media ‘influencers’.

The Advertising Standards Agency (ASA), in collaboration with the Competition and Markets Authority (CMA) have recently published a new guide to outline the advertising rules which apply to social media ‘influencers’. This came following their investigation into social media advertising in August 2018, after concerns that celebrities and social media ‘influencers’ do not properly declare when they have been paid or rewarded to promote services or products.

Shahriar Coupal, Director of the Committee of Advertising Practice (CAP) said:
“Responsible influencer marketing involves being upfront and clear with the audience, so people are not confused or misled and know when they’re being advertised to. The relationship between influencers and their followers relies on trust and authenticity, so transparency is in the interests of all parties. This guide on the standards will help influencers and brands stick to the rules by being upfront with their followers.”

Social media is quickly becoming the most important platform for advertising. A recent survey showed that 70% of millennial consumers are influenced by the recommendations of their peers in buying decisions.

Instagram is one of the most popular social media platforms for advertising, with 87% of marketers citing Instagram as the most important platform for their influencer marketing programs and this summer it reached a billion active monthly users. It can be a lucrative platform for those with a high volume of followers: celebrities such as Beyonce and Selena Gomez have been recorded as receiving $1 million and $550,000 per post respectively. Others have made a name for themselves through social media influencing alone, with the likes of Jen Selter and Zoella making $15,000 and $14,000 per post.

Instagram is also one of the places where influencers have been seen to fall foul of advertising regulations. Over the last few years posts from Louise Thompson, Millie Macintosh, and Marnie Simpson have been subject to ASA action.

There are lots of rules that could apply, but the ASA pays particular attention to the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code) and the Consumer Protection from Unfair Trading Regulations 2008 (CPRs).

What counts as an ad?
Affiliate marketing – if the content you post promotes a product or service, especially if it contains a hyperlink to the product or service or a discount code with commission, that counts as advertising.

Advertorial – if you work with a brand to create content and are paid in some way for doing so, this is an ad. There needs to be both payment and control for this to apply. Control is considered to be asserted if the influencer does not have complete freedom to do and or say whatever they want. This includes the brand having final editorial say over the content.

What counts as being paid?
Being ‘paid’ for this purpose can include receiving goods for free, it is not only a monetary reward. Similarly, any sort of profitable relationship with a brand, such as a being a paid ambassador, receiving gifts, products, trips etc. for free or in return for your services, constitutes a payment.

What counts as prohibited content under the CPRs?

• using ‘editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial);
• falsely claiming or giving the impression that an individual is acting outside of their business purposes or falsely representing themselves as a consumer;
• failing to identify a commercial intent behind a social media post;
• and omitting or hiding ‘material’ information.

What does not count as an ad under the CAP code?

• Posting content for a brand for no gain ie they control the content but you receive nothing in return;
• Receiving freebies and posting about them but the brand having no control over the content;
• Discount codes with no commission; or
• Recommending products or services which you have bought yourself and with no influence from the brand.

Key things for influencers to remember:

• Ads should be recognisable as ads (section 2 CAP code) the code requires it to be ‘obvious’ and the ASA recommends using labels such as ‘ad’ ‘advertisement’ ‘advert’ etc. and notes that just ‘@’ mentioning the brand will not be sufficient;
• Advertisers must avoid misleading people (section 3 CAP code);
• Promotion marketing (eg competitions, and giveaways etc) are subject to additional regulations (section 8 CAP code); and
• Promoting some products may be subject to other rules e.g. food or supplements or age restrictions (for products like gambling or alcohol).

The ASA and the CMA are by no means discouraging advertising by influencers or on social media. It is simply important to ensure that any advertising complies with the regulations already in force in the UK. The key is transparency. Consumers should be able to recognise that what they are viewing is advertising and it is the duty of both the poster and the brand to make sure this is clear.

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