ASA ruling on ASOS – use of “affiliate” for a marketing communication
Is the use of “affiliate” sufficiently clear to identify an affiliate advertorial as a marketing communication?The key takeaway
Advertisers must ensure that affiliate links are obviously identifiable as marketing communications and must make clear their commercial intent upfront, for example, by including a clear and prominent identifier such as “#ad”. The use of the term “affiliate” is unlikely to be sufficiently clear as a standalone label to ensure affiliate ads are obviously identifiable.
An Instagram story seen on Zoe Sugg’s Instagram page on 6 July 2019 featured an image of Zoe wearing a floral maxi dress. Text stated “Lots of you loving the dress I’m wearing in my newest photos! ... it’s from @missselfridge Swipe up to shop … (Also popped it on my @liketoknowit profile if you’d rather shop straight from the app)”.
Additional text at the bottom right-hand side of the image, obscured by the direct message icon, stated “*affiliate”. Swiping up on the story took users to a product page on the ASOS website.
The complainant challenged whether the ad was obviously identifiable as a marketing communication.
Asos.com t/a ASOS responded that Zoe Sugg was an ASOS affiliate, which meant that she could earn commission from ASOS sales through a third-party influencer network. ASOS stated that it did not have any advance knowledge of, or direct input or control over, the Instagram story in question but had made it clear to all of their affiliates that disclosure labels needed to be clear and prominent. ASOS accepted that the disclosure in Zoe Sugg’s story was not sufficiently prominent, as it was obscured by the platform’s on-screen graphics when viewed on a mobile phone. However, they stated that the use of the term “affiliate” should have been considered an adequate signpost of a purely affiliate relationship in place between a brand and influencer. It added that “affiliate” was a clear and accurate description of the nature of the content.
To further demonstrate this, ASOS referred to the 2019 Ipsos MORI report on “Labelling of influencer advertising”, published in September 2019. They specifically referred to an example ad from Twitter (which was tested in the research) where a higher proportion of participants identified the example with “#advert” upfront and “#affiliate” at the end as being “definitely an ad” (48%) than the post with only “#affiliate” at the end (44%). The report stated that the difference was directional rather than significant. Based on this, ASOS argued that the lack of significant difference in understanding between the two examples demonstrated that “affiliate” was equally as suitable a label as “advert” or “#ad” to disclose affiliate ads.
Ms Sugg’s company, Zoe Sugg Ltd, said it had explained to users that she received an affiliate commission by using the identifier “affiliate”, and that users would therefore be clear as to the nature of the relationship between her and the third-party influencer network app.
ASOS also stated that the report showed that, in some instances, the term “affiliate” was better recognised than the term “ad” when used at the beginning of the text in an ad. It referred to an example Instagram story ad tested in the research where “#advert” was used at the start of the post and it was recognised as marketing communications by 43% of those surveyed. In another example, where “#ad” was used at the start of the text in an Instagram post, 36% of participants recognised it as an ad. ASOS also referred to another example where 38% of participants had recognised a tweet, which used the term “affiliate” at the end of the text, as an ad. Zoe Sugg Ltd said the findings demonstrated that the term “affiliate”, when used in the same placement as the term “ad”, was as least as likely as that label to result in an ad being identified as such.
The ASA upheld the complaint. Although it acknowledged that ASOS had no direct input into or control over the ad, the ASA nonetheless considered that, as the direct beneficiaries of the marketing material through an affiliate programme, it was jointly responsible for the ad and its compliance with the CAP Code.
Regarding the ad in question, the text “affiliate” was obscured by the app’s “direct message” icon. Although it acknowledged that the ad included references to the brand of the dress and a call to action to purchase it, the ASA did not consider the affiliate content sufficiently clear to indicate to users that there was a commercial relationship between Zoe Sugg and ASOS and that the story was an ad.
The ASA considered whether the term “affiliate” itself would be sufficient to obviously identify an ad as such. Both ASOS and Zoe Sugg Ltd had pointed to various examples in the research which they believed supported the argument that “affiliate” was a sufficient label to communicate that content was an affiliate ad. However, only 38% of participants felt they would be able to confidently explain what the word “affiliate” meant when displayed on social media, which put it amongst the terms that participants were least confident explaining.
The ASA said that in no example where “affiliate” was used in isolation did more than 45% of participants recognise it as an ad, and the low levels of recognition of ads in the research overall demonstrated the difficulties of obviously differentiating ads from other content on social media platforms. It considered that the term “affiliate” was therefore unlikely to be sufficiently clear as a standalone label to ensure affiliate ads were obviously identifiable.
The ASA concluded that the ad was not obviously identifiable as such and did not make clear its commercial intent. It therefore breached CAP Code Rules 2.1 and 2.3 (Recognition of marketing communications).
Why is this important?
The ASA upholding the complaint is a clear warning to retailers’ and brands’ marketing departments about their responsibilities when working with online influencers. Even where a brand may be unaware or have no direct input into or control over the ad, as a beneficiary of the marketing material, the company will be jointly responsible for adhering to CAP guidelines. Additionally, advertorials must be marked clearly as marketing communications from the outset. It will not be sufficient to hide clear signposts or use diluted labels.
Any practical tips?
The use of “affiliate” as a standalone term within marketing material is not a strong enough indicator of commercial intent. The ASA requires all parties to ensure that commercial content includes “a clear and prominent identifier such as “#ad” at a minimum”.