To help influencers and brands comply with the legal requirements around influencer marketing the CAP issued An Influencer's Guide to making clear that ads are ads, developed in conjunction with the CMA.
With a flurry of adjudications against a number of well-known celebrities, the ASA issuing a call for evidence on the recognition and labelling of ads online in April, and the Competition and Markets Authority (CMA) launching a Consumer Enforcement Investigation in August, it seems that influencer marketing remains a hot topic for regulators.
To help influencers and brands comply with the legal requirements around influencer marketing, in particular ensuring that posts are #obviouslyidentifiable, on 28 September 2018 CAP issued An Influencer's Guide to making clear that ads are ads, developed in conjunction with the CMA.
So, what does it say and how can influencers, brands and agencies comply?
What is covered by the Guide?
1. Advertorial content
Perhaps the most common form of influencer marketing, this is where the influencer and brand work together to create content to be posted on the influencer's social media channels.
In line with previous guidance, CAP has confirmed that there needs to be both "payment" and "editorial control" in order to be considered advertising. However, the bar for each of these concepts is relatively low - a gift or loan of a product would constitute "payment" and unless the influencer is completely free to post whatever and whenever they want, it is likely that the brand will be deemed to be exercising some editorial control.
Whilst a lack of editorial control will mean that the post is not caught by the CAP Code, the Guide reminds influencers and brands that this type of arrangement is similar to sponsorship and so does still fall under consumer protection law, as policed by the CMA (CMA Guidance Online endorsements: being open and honest with your audience). Consequently, the existence of any payment or incentive will still need to be disclosed in posts.
2. Affiliate marketing
This involves influencer content that promotes products or services using links or discount codes. The influencer is paid per-click or sale that can be attributed to their content promoting the product.
If a post features a mixture of affiliate-linked products and products that have been included by the influencer of their own accord, then only the affiliate linked-products need be labelled as advertising. Whilst this is clearly desirable from a consumer transparency perspective, the Guide does not provide examples of how this can be achieved. For example, if multiple brands are tagged in a post, or if a single post consists of multiple photos, it is unclear how/where influencers could clearly identify which of the tags are affiliate links.
The Guide also confirms that in these circumstances an influencer would effectively be acting as a "secondary advertiser" and so would be equally responsible for ensuring that the content meets all other relevant advertising rules e.g. around promotions, pricing etc.
3. Own advertising by the influencer
CAP has now confirmed that "own advertising" on an influencer's channel is also captured.
So, if an influencer posts about their own products/services – be it their own clothing brand or an event that they are running – these will need to be identifiable as advertising content. Additionally, any prize draws by the influencer would also be caught by the promotional marketing rules.
Ensuring that ads are #obviouslyidentifiable – what labels should be used?
In order to comply with ad disclosure requirements under the CAP Code the ad "must be obviously identifiable as such". Responsibility for compliance lies with both the influencer and the brand and both would ordinarily be referenced in any ASA ruling.
CAP has reiterated that labels that make completely clear that the content is advertising are those preferred by the ASA – so, "Ad", "Advert", "Advertisement" etc are all likely to be acceptable.
CAP has confirmed that the following labels are often problematic:
- Sponsorship, sponsored, #spon
- In association with [brand]
- Thanks to [brand] for making this possible
- Just @ mentioning the brand
Ultimately, the label needs to be upfront, prominent, appropriate for the platform, and suitable for all potential devices in order to be compliant.
Additionally, hiding #ad with several other hashtags or requiring the audience to have to click to "see more" before seeing the label will likely fall foul of the Code. In reality, this means including the label in the title, prominently in the caption or on the image itself.
Similarly, CAP reiterated that the ASA has recently held that placing advertorial or affiliate content in "stories" will also be caught by the rules.
Beyond the control of the brand - the CMA's expectations
If a brand has not exercised any editorial control, but the influencer has still been "paid", then consumer protection legislation will still apply – ultimately the "payment" element will need to be disclosed. One of the most common examples of this would be when influencers are sent an unprompted gift by a brand where there is no formal requirement to post.
The Guide suggests that paid-for content (without editorial control) could be labelled as "advertisement feature" or "advertising promotion" in order to ensure compliance from a CMA perspective. However, this raises a complication - there is a risk that this in itself could be misleading to consumers (ie who would assume that a label which references the word "advert" means that the influencer would have been paid in some way).
In circumstances where free products are gifted by a brand with no strings attached, a more appropriate label could be something along the lines of #gift or “gifted” as this makes clear that the influencer was given the product for free, but the brand did not have any control over the content. However, CAP has stated that the ASA would likely find #gift on adverts to be misleading (PRWeek 1 October 2018). It follows that great care should be taken when assessing whether the post will fall under consumer protection regulation or the CAP Code - and is also why understanding whether the post is in fact an ad is so crucial.
Finally, it is also worth noting that the CMA expects any views expressed by an influencer in a post to be genuine (e.g. if they talk about any particular results that a product may have, then they should have experienced those results). It is unclear from the Guide whether this would equally be the case where the post is considered an advert within the ASA's remit. If so, this seems to be at odds with traditional ad campaigns which feature high profile celebrities. For example, consumers would not expect Kate Moss to use Rimmel as her everyday make-up or that Holly Willoughby and Davina McCall regularly use Garnier's home hair colour treatment. Certainly if the post is actually suggesting that the influencer is personally using the products then the views expressed must be genuine. However, the CMA's overarching expectation that all views expressed by an influencer must be genuine has the potential to catch scenarios where the brand has provided messaging to be included in posts which are labelled as advertising.
Overall, the Guide is a welcome resource, consolidating existing guidance plus the ASA's expectations as discerned from many of the recent rulings into an easily digestible and concise document. The material offers some clear and helpful tips on staying compliant, and deals with a few of the previously considered "grey areas", in particular where influencers are given gifts with no obligation to post and where they are posting about their own products and services.
Perhaps the biggest concern is that some areas of the Guide may well be difficult for influencers and brands to apply in practice – for example:
- Multiple brands featured or tagged in a post – how can influencers easily distinguish the content which is advertising, from the content which is not? Space limitations in captions may make this difficult to achieve in a way which is likely to be considered obvious (i.e. without the viewer needing to click a "see more" button).
- Unsolicited gifts – would a label such as #gift or "gifted" be acceptable if there is no editorial control? If an influencer's post features a product from a brand which the influencer has paid for themselves, but the brand has independently sent other free unsolicited products to the influencer (which are not featured), would the fact that the influencer has still received other free products need to be disclosed?
Ultimately, while the Guide does not cover all the bases, at the very least influencers are now in a better position to gauge when their content is advertising and how it should be labelled. For scenarios that do not seem to fall squarely within the Guide, or campaigns that involve higher risk areas (e.g. food, supplements, alcohol or gambling) legal advice should be sought by influencers and the brands and agencies that they work with in order to ensure that campaigns stay on the right side of the regulatory line.