The #ad debate resolved? ASA announce new Guidelines for Influencers

October 2018

The Committee of Advertising Practice (CAP) and the Competition and Markets Authority (CMA) have come together and created “An Influencer’s Guide to making clear that ads are ads”. The 20-page Guide includes qualifications as to what counts as an advert including payment and control of content together with guidance on how to make it clear that an advert is in fact an advert.

So what is affiliate marketing?

The Guide defines affiliate marketing as content that promotes particular products or services and contains a hyperlink or discount code that means an Influencer gets paid for every ‘click-through’ or sale that can be tracked back to their content. If there are affiliate links or discount codes for only some of the products mentioned in the content, and other products mentioned were purely in an editorial capacity, then only the content that relates to affiliate-linked products are classed as adverts.

What counts as an ad?

If an Influencer works with a brand to create content that they will be posting on their own channels, it will qualify as an ad if the brand:

  1. ‘Paid’ the Influencer in some way (including gifts)
  2. Had some form of editorial ‘control’ over the content including just final approval

Both payment and control need to be established for a post to count as an ad under the CAP code.

So how do Influencers make it clear that it is an ad?

Both the influencer and the brand are responsible for ensuring that advertorial content makes clear that it is advertising. If it is not obvious from the content that something is an ad, more needs to be done with the content to make it clear. Currently the ASA likes the following labels:

  • Ad
  • Advert
  • Advertising
  • Advertisement

Other more riskier labels that brands and Influencer alike are advised to stay away from are:

  • Sponsorship, sponsored, Son., #spon, #sp
  • In association with
  • Thanks to [brand] for making this possible
  • Just @ mentioning the brands

This is because the ASA has previously made it clear that labels like this do not tell the full story nor make it obvious that the post is an ad. The key is to make the fact that the ad is an advert obvious.

Who is responsible?

Both the Influencer and the brand are responsible for compliance. If the ASA decide that an ad is not compliant they will likely rile that it be changed or removed, and sanctions may be made if you do not comply.

This update was prepared by HGF IP Solicitor Liz Cooper.  If you would like further advice on this or any other matter please contact Liz or your usual HGF representative, alternatively visit our Contact Page to get in touch with your nearest HGF office.