CMA tightens noose on ad disclosures

How can brands and influencers ensure they comply with the (tough) approach now being adopted by the CMA?

The background

Following CAP’s Influencer Guidance, influencer marketing still remains a hot topic for regulators, with the Competition and Markets Authority (CMA) releasing the results of their Customer Enforcement Investigation on 23 January 2019. 

16 well known celebrities have given undertakings to the CMA, and further guidance has been issued on how to be transparent with your followers.

The development

The CMA appears to take a much firmer stance to the previously released guidance on some of the more controversial areas of influencer marketing, including when influencers are given freebies, when they are promoting their own product ranges, and where there is a historic relationship between an influencer and a brand.

The CMA have re-stressed that if you have not purchased the product or service yourself, and have received it for free, then this must be made clear.  Furthermore, if you do not currently have a relationship with a brand, but have in the last year (or you received free products or services) then this must also be made clear.

The CMA has identified three key areas where influencers can mislead consumers by giving false impressions.

1.   You are just a consumer, when in fact you are actually acting for a brand or your own business purposes.

2.   You have bought something, when you were actually gifted the product or service.

Both of the above could lead the consumer to think you have purchased the product yourself, as you think it is good value for money or good quality.

3.   You have used the product yourself, when you have not, and are making claims about its benefits.  This could lead the consumer to reasonably assume that any results being claimed are ones you have experienced first-hand. 

How can I avoid misleading consumers?

The CMA has made it clear that the labelling must be easy to understand and transparent, without the need to have to click for more information.  This means disclosure should be made upfront, and not buried amongst other hashtags.

Examples of good practice include:

• labelling with “Advertisement feature”
• labelling with “Advertisement promotion”
• using #Ad/ #Advert
• “Paid Partnership” tool in Instagram in addition to the above hashtags.

  Examples of bad practice include:

• tagging the brand or business without additional disclosure
• tagging a gift from a brand in the picture or text without additional disclosure
• only using discount codes, competitions or giveaways
• making references to it being your own range
• using ambiguous language such as “thank you”; “made possible by”; “in collaboration with”, etc
• #sp; #spon; #client; #collab
• adding #ad directly after the brand name – [BRANDNAMEad]
• hiding the disclosure among other hashtags or at the end of a post
• product placement where there is an associated payment or other incentive
• only disclosing the commercial affiliation on your front page/profile page/bio.

Additionally, if a post contains multiple brands with which you have relationships, every effort should be made to make them all prominent and clear. 

Finally, the CMA was firm in pointing out that there is no perfect solution for labelling your content across all platforms.  Influencers and brands need to be conscious of how the different social media platforms present their content, so that they are able to clearly label it.

Why is this important?

The CMA is treating influencer marketing as a regulatory hot topic, and is something all brands and influencers need to take seriously going forwards into 2019.

The CMA undertakings (as signed by the celebrities) include requirements to label posts clearly where you have received gifts from a brand, avoid falsely representing yourself as a consumer, and not claiming benefits for a product when you do not use the product.  The celebrities have also agreed to follow the CAP Code and the ASA’s associated guidelines.  Although the undertakings do not place any further burdens than what has already been stated in both the CMA and in CAP and ASA guidance; the consequences for now breaching the rules could be far more severe.

Any practical tips?

It is important for influencers to remember that posts need to be clearly labelled.  It is not enough to assume the consumer will infer that the post is an advertisement/promotion because you have used discount codes, referred to it as your own range, thanked the brand, or disclosed the commercial relationship in your bio.

The guidance has confirmed for the first time that the “Paid Partnership” banner on Instagram is acceptable labelling; however, it still needs to be used in addition with other hashtags to make it clear to consumers. 

With the CMA stating that the law is not prescriptive as social media evolves, it still remains far from clear what the best approach is for brands and influencers.  Some of the guidance will prove difficult to follow in practice.  This is particularly so for influencers who do multiple brand posts on Instagram, and need to declare all the different relationships before the consumer has to click on “see more”.

The CMA remains on the look-out for infringers, as indeed does the ASA.  For now, the best approach is to play it safe and to be as clear as possible to consumers.  If in any doubt, label!