A recent study by the UK Advertising Standards Authority (ASA) found that the majority of social media influencers (still) violate consumer and advertising laws.
The ASA’s report, “Influencer Monitoring Report (March 2021)” (the “Report”), was produced as part of the ASA’s commitment to be more effective online, more proactive in its regulation and to demonstrate its enhanced monitoring role.
What the rules say
The UK Code of Non-Airborne Advertising, Direct and Promotional Marketing (the “CAP Code”) requires:
- Marketing communication must obviously be identifiable as such (rule 2.1);
- Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside his or her trade, business, craft or profession. Marketing communications must clarify their commercial intent if this is not apparent from the context (rule 2.3); and,
- Marketers and publishers need to make it clear that advertorials are marketing communications. For example by heading “Advertising Function” (rule 2.4).
The CAP code applies to ads in all non-broadcast media, including digital platforms such as Instagram, Facebook, YouTube, Snapchat, Twitter and TikTok.
What the report says
Despite the ASA’s guidelines on influencers (including “The Influencer’s Cheat Sheet on How to Declare Social Media Ads”) and previous decisions on social media advertising, the ASA concluded that neither influencers nor their brands are exercising adequate care to ensure that consumers know when something is an advertorial.
With most of the complaints about influencer-related ads coming on Instagram, the ASA focused on this platform as part of its three-week monitoring exercise in September 2020. A total of 122 UK-based influencers were monitored, including monitoring 24,000 Instagram Stories (as previous complaints were mostly related to the use of this feature). Regular posts, IGTV and role function were also checked. The report concluded that almost one in four of those 24,000 stories was classified as marketing, and that only 35% of the stories that were advertised were properly labeled.
According to the report, the ASA continues to see “far too many cases of secrecy that discredit this marketing discipline and arouse suspicion of consumers”.
The report’s findings and recommendations on general issues to look out for include:
1. Inconsistent disclosure across stories
Each and every story must be posted as an ad, unless it is specifically stated that it is part of the same post. It is not enough to just tag the first story, as subsequent sequels may not be obviously identifiable as ads.
2. Inconsistent disclosure about stories, IGTV, roles, posts
Sometimes a post was posted as an advertisement on one of these media, but the other media did not. For example, the post clearly stated that the content was an ad, but not the related story.
3. Visibility of ad labels
Labels that reveal the content as an “ad” were often in small print or difficult to see, possibly because they were obscured by the platform architecture or written in a color similar to the background of a story. The label must be easy to read on a mobile phone, desktop or other device. The ad label, or #ad, so widely recommended in previous ASA decisions, was often displayed at the end of the text or below the crease. Instead, ad disclosure should be the first thing consumers see.
4. Affiliate content is still ads
As mentioned in previous ASA decisions, it is not sufficient for “#affiliate” or “#aff” to be displayed without further disclosure to reveal the promotional nature of the content to users. We recommend using #ad even if the post contains affiliate marketing.
5. Private label ads
Influencers shouldn’t rely on BIOS or previous posts to make it clear that they are associated with a product. If they say “This is my book” or “Download my app” in their story, it is likely clear that they are connected to their product. If the content does not make it clear, the ad needs to be sufficiently highlighted.
What does that mean?
Many of the rules in the GAP Code are backed by law, including the 2008 Consumer Protection Against Unfair Trading Provisions. If an influencer fails to adequately disclose that a job is actually being marketed, there is a real risk that the influencer (and the brand ) not only break the CAP code, they may also commit a criminal offense.
The ASA has said that with the guidelines now available, there is simply no excuse for influencers not to make it clear to consumers when content has been paid for by a brand. Additionally, the ASA warns that they wrote to all of the influencers they monitored, as well as a number of brands featured in the ads, alerting them that they will be conducting future spot checks for monitoring. Should these samples (or, indeed, consumer complaints) reveal further cases of infringement, they will take enforcement action. The penalties can include removing ads, making public decisions, having a dedicated non-compliant page on the ASA website (and the bad PR that comes with a public referral), withdrawing and restricting paid search ads on platforms and include closing ads in severe cases. Reference to trade standards and the competition and market regulator.
How can influencers and brands ensure compliance?
It is clear that brands cannot ignore their influencer’s actions and that if an influencer fails to follow the rules, they can be collectively held accountable. Brands and influencers should:
- Be careful about contract design (e.g., hashtag and post disclosure requirements) and have a solid approval process and monitoring in place.
- Make sure marketing communications are labeled as such by displaying #ad or ‘ad’ in a prominent position before the center point on social media posts, whether or not there is a contractual agreement to promote a product or the agreement more is similar to an affiliate relationship;
- Avoid using labels like “supported / funded by”, “in conjunction with”, “thanks.” [ ], ‘Sponsoring’, # aff / Affiliate and # sp / Sponsor ‘;
- Make sure that the labeling is in the foreground in all formats and not buried in a sea of hashtags, and ensure that the labeling is included in posts that, when viewed in isolation, do not make it explicitly clear that it is at the brands discussed are brands in which the individual contributions contain a financial interest;
- Use tools to differentiate advertising content. and,
- Get advice from a marketing professional.