#Ad-vice for influencers and brands
How to comply with CAP’s new Influencer’s Guide?
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 the 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 a new Influencer’s Guide, developed in conjunction with the CMA.
So – what does it say and how can influencers and brands comply?
What is covered by the Guide?
In addition to straight-forward paid advertising space online, the new Guide deals with a number of other types of advertising scenarios that commonly feature influencers:
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 (and therefore subject to the CAP Code). However, the bar for each of these concepts is relatively low:
Payment – payment does not need to be made for a specific post or series of posts. If an influencer has any kind of commercial relationship with the brand (eg because they are a brand ambassador) and are paid as a result of this relationship, then this is sufficient. Payment also goes beyond monetary payments and includes loans of products/services, incentives, commissions or freebies (eg free products, gifts, trips, services, hotel stays etc).
Editorial control – if the influencer is not completely free to post whatever and whenever they want, then the brand will likely be exercising some editorial control. Specifying what needs to be featured in an image or video, control over timing/number of posts and/or ability of the brand to give final approval or require the influencer to change/remove a post will all likely meet the threshold for 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. The CMA requires that the existence of any payment will still need to be disclosed in the applicable posts (see CMA section below).
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.
The Guide confirms that if a post features a mixture of affiliate-linked products and products that have been included by the influencer of their own accord (ie without any incentive), then only the affiliate linked-products need be labelled as advertising content. 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 would be expected to clearly identify which of the tags are affiliate links. One option could be to include such information within the caption. However, influencers need to ensure that this information is included upfront (ie without the need for consumers to click further) and so character limitations may be problematic in the context of mixed posts that feature multiple brands.
The Guide also states that in the context of affiliate marketing an influencer would effectively be acting as a “secondary advertiser” and so would be equally responsible for ensuring that the content meets all the other relevant advertising rules eg those concerning promotions, pricing etc.
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, a restaurant that they own or an event that they are running – these will need to be identifiable as advertising content. It may be obvious from the post’s content or the caption (eg if the influencer invites their followers to “come to my event” or makes clear that the products/services they are promoting are their own). However, if this is not immediately clear within the post itself, then best practice would be to include an appropriate advertising disclosure label (see below).
Additionally, any prize draws or giveaways by the influencer in a personal capacity would also be caught by the promotional marketing rules. This means that the influencer would be responsible for communicating all significant conditions for promotions to consumers and complying with the other provisions of Section 8 of the CAP Code.
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”. If not already apparent from the context of the ad itself, this essentially means including an appropriately worded and prominently placed label. 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, Advertising, Advertisement etc are all likely to be acceptable.
Drawing on examples taken from previously upheld ASA adjudications, CAP has confirmed that the following labels are often problematic as they do not present the full picture and therefore risk failing to meet the requirement of making it “obvious”:
- sponsorship, sponsored, #spon
- in association with
- 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, at the beginning of 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
As mentioned above, 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 brand is gifting the product in the hope that the influencer will use/wear it and choose to feature the product in a post in the future.
Notwithstanding that there will undoubtedly be many instances where influencers choose not to feature the products they are sent, the CMA still expects that where influencers do feature a free product in a post then this should be disclosed in the interests of transparency. But how to do this?
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 may assume that a label which references the word “advert” is an advert in the traditional sense, thereby suggesting a formalised relationship between the parties where there is none). 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. It follows that great care should be taken when assessing whether the post will fall under consumer protection regulation or the CAP Code in order to ensure the appropriate label is used. It is also why understanding whether the post is in fact an advert is so crucial - which in turn brings us straight back to the central question of editorial control.
Finally, it is also worth noting that the CMA expects any views expressed by influencers in their posts to be genuine (eg 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 actually expect Kate Moss to actually use Rimmel as her everyday make-up or that Holly Willoughby, Davina McCall and Angela Scanlon 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 expectation that 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. This is another example of the tricky overlap between the approach adopted by CAP and the CMA. The backdrop being that one would hope that consumers are savvy enough to recognise that advertising messaging is predominantly provided by the brand (ie and they are therefore not misled).