New CAP guidance on affiliate marketing

Is your “affliate marketing” obviously identifiable as an advert?

The background

A key ASA principle is that advertising should be obviously identifiable to consumers. However, this can sometimes be difficult, particularly in the context of affiliate marketing.

To recap (in CAP’s language) affiliate marketing is “a way for a business to sell its products by signing up individuals or companies, aka “affiliates” who market the business’ products for a commission. Affiliates typically place ads, promotional codes and links online that direct consumers to the website of a company”.

The development

The Committee of Advertising Practice (CAP) issued new guidance on 9 March 2017 to help advertisers ensure that their affiliate marketing is easily identifiable to consumers. This guidance primarily focuses on clarifying when affiliate marketing is caught by the CAP Code and making sure that affiliate marketing is obviously identifiable.

When is affiliate marketing caught by the CAP Code? CAP explains that content on an affiliate's own website or social media is caught if it’s directly connected to the supply or transfer of goods, services, opportunities and gifts (eg typically via a hyperlink, a promotional code or other means by which a customer can be attributed to a specific affiliate).

When is affiliate marketing not caught? Where these types of links are not present, the affiliate activity is unlikely to fall under the Code unless it is “advertising” under another definition. “Natural listings” on price comparison sites are expressly excluded.

Ensuring affiliate marketing is obviously identifiable

The guidance identifies the following four areas where affiliate marketing is particularly prominent: (1) blogs and news sites; (2) vlogs; (3) social media posts; and (4) voucher sites. Practical tips are given for each of these areas, and a number of general recommendations can also be drawn from the guidance.

• Content wholly related to affiliate linked products, which is directly connected to the supply of those products – in this situation, CAP has confirmed that the commercial nature of the content should be made clear prior to consumer engagement (eg before the consumer clicks through to the content, as well as to those reading the content). The guidance suggests that the simplest way to do this is to include an obvious identifier eg “Ad” in the title of the blog/article.

• Content which is not wholly related to affiliate linked products, or directly connected to the supply of the products – here the guidance confirms that it is not necessary to include a general identifier in the title, but the particular pieces/ sections of content related to the affiliated products (and links to those products) should be labelled as advertising. Another acceptable method is to clearly state at
the beginning of the content that asterisks (or other identifiers) throughout the article indicate the elements which constitute advertising. However the guidance makes clear that disclaimers at the bottom of content are unlikely to be acceptable.

• Explaining the nature of the relationship between the affiliate and the company – eg by the affiliate expressly stating that they receive a small share of sales through the affiliate relationship. This is encouraged by CAP (although CAP acknowledges that including an explanation is not a requirement under the CAP Code).

Blogs and news sites – all the recommendations above apply.

Vlogs – as above, but the CAP guidance also suggests that a way to making it clear prior to consumer engagement that a particular section of the content is an ad would be to include on-screen text/holding up a sign (eg with the word ad) when the vlogger is talking about affiliated products. CAP also confirms that the vlog description should also make it clear which products/links featured are advertising. The guidance also notes that particular “quirks” of the platform (eg limits on how much is visible) should be carefully considered by advertisers.

Social Media – as above, but the CAP guidance also confirms that for a social media post where all of the links within the post are affiliate links, and there is no character limit eg Facebook, then the word ad should appear at the beginning of the post. Where the platform only facilitates posting images, eg Instagram, then CAP suggests that the word ad should be included within the image itself. On Twitter, as space is limited, labelling the content with “ad” is likely to be the clearest way of identifying it as advertising.

Voucher sites – as above. CAP also confirms that promotional offers on these sites which include affiliate links should be obviously identifiable as advertising. And where all of the promotional offers on a site include affiliate links, the website as a whole should make clear the nature of the content and not misleadingly imply that the website is “independent” or has merely collated the deals for no financial incentive. This will need to be obvious to anyone accessing the site (and not, for example, buried in the T&Cs or a FAQs page).

Why is it important?

This is the second piece of guidance/commentary released by CAP on the identifiability of adverts in the online sector in a relatively short period. In October 2016, CAP released an advice note covering the difference between adverts and sponsored editorial pieces entitled: Is your ad “obviously identifiable?” Here’s why “Spon” is not “ad”. As marketers increasingly look for new and innovative ways to advertise their products, the ASA is clearly keen to ensure that the methods used, particularly in the online sphere, are still easily identifiable as ads by consumers.

Any practical tips?

• Ensure you have appropriate safeguards in contracts with affiliates. The guidance reminds marketers that giving free reign over the content of ads to affiliates does not absolve the marketer from responsibility. Similarly, CAP highlighted that when an affiliate takes on administrative elements of the advertising (eg targeting ads) then if there is an error (eg the ad is targeted at an inappropriate audience) the marketer will still be responsible as well as the affiliate.

• Remember the other rules on blogging and vlogging still apply. Care should
therefore be taken to ensure that you label adverts, advertorials and sponsored
editorial pieces correctly, using #ad and #spon in the appropriate context.