Online Affiliate Marketing: New CAP advice note
What should brands do to ensure that their affiliate marketing complies with the CAP Code?
The key takeawaysAffiliate marketing must be obviously identifiable and must not mislead materially or cause serious or widespread offence.
The background
Affiliate marketing is a type of performance-based marketing where an affiliate is rewarded by a business for each new customer attracted by their marketing efforts, usually with a pre-agreed percentage of each sale.
The CAP Code applies to affiliate marketing within the categories of communication outlined in the scope of the Code. Content on an affiliate’s own website and social media is therefore caught if it’s directly connected to the supply or transfer of goods, services, opportunities and gifts. This connection is usually by virtue of the inclusion of a hyperlink, a promotional code or other means by which a new customer or sale can be attributed to a specific affiliate.
Rule 2.1 of the CAP Code requires that marketing communications are obviously identifiable as such. The Code also states that marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession and that marketing communications must make clear their commercial intent, if that is not obvious from the context (rule 2.3). Accordingly, the CAP Code requires that:
• marketing communications (such as Instagram posts) are obviously identifiable as such
• marketing communications must not falsely state or imply that the author is acting as a consumer
• the author of the communication must make it clear that it has a commercial relationship with the product being marketed, unless it is evident from the context.
The note focuses on affiliate marketing mediums that are not easily recognisable as ads, such as social media, blogs, vlogs, news sites and voucher sites. The note provides practical guidelines on how to make it clear that there is a commercial relationship between the author and the product.
The guidance
Blogs and news sites
The easiest way to ensure that the commercial relationship between the author and the product is clear is to include an identifier, such as “Ad”, in the title of the article or blog. This should be clear to those reading the title before they click and open the content, as well as to those reading the article or blog. Although not required by the CAP Code, the note also recommends explaining the nature of the relationship between the affiliate marketer and the seller of the product. This could take the form of a short sentence stating that that the marketer receives a share of sales.
Vlogs
As with blogs and news site, vloggers must identify their advertising content in a manner that is obvious to the consumer prior to engagement. CAP proposes that this can be done using on-screen text/signs making clear that this is an “Ad” or by simply explaining verbally which elements of the content are “advertising”. It is important that this is done before the affiliated products are introduced to the consumer. The description should also be similarly forthcoming and transparent.
Social media posts
The underlying principle is that social media posts which include affiliate links should be obviously identifiable as advertising before consumer engagement. In terms of practicals:
- if only an image is visible, such as on Instagram, an identifier should be included on the image itself
- on Facebook, where there is no character limit, a post should include an identifier at the beginning
- on Twitter and Pinterest, where there is a character limit, the label should contain “Ad” or an equally clear identifier in order to ensure that the rules are complied with.
Promotional offers on “voucher”, “free goods” and “deals” websites should be easily recognisable as advertising if they include affiliate links. Care should also be taken not to mislead the consumer by implying that the website is “independent” or that there is no financial incentive behind the content.
Why is this important?
While the headlines tend to focus on celebrity influencers, the advice note reminds us that all forms of affiliate marketing are caught by the disclosure rules and that everyone in the chain needs to understand their obligations around appropriate labelling and the targeting of marketing communications.
Any practical tips?
Don’t think that allowing your affiliates to have free rein over the content of your ads relieves you from the responsibility of ensuring that the advertising is compliant with the CAP Code. The ASA ‘s approach is that both the business and the affiliate marketer are responsible under the Code, notwithstanding the fact that the ads may have been created solely by the affiliate rather than by the business themselves. Similarly, as primary responsibility for observing the Code falls on marketers, promotions run by affiliates that do not adhere to the Code will be equally problematic.