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Opinion

#Ad Nauseum: Where Does the ASA’s Latest Advice Legally Leave Influencer Marketing?

With the influencer market booming, how can the ASA ensure the message of disclosing paid posts with #ad is understood loud and clear? Steve Kuncewicz, advertising law expert, examines how influencers and brands can, and must, get to grips with evolving regulation.

In an attempt to bring greater transparency to influencer advertising, the Advertising Standards Authority (ASA) recently announced that influencers must stamp their posts with #ad as a necessary minimum after a review found members of the public still find it difficult to distinguish between genuine posts and paid promotions. 

What’s in a label? 

Quite a lot it would seem, at least according to the Advertising Standards Authority. It recently announced that influencers must now stamp all promotional posts with ‘#ad’ or ‘ad’ as a necessary minimum in an attempt to “ensure transparency” in influencer advertising, alongside the Competitions and Market Authority (CMA).

Many of us working within the UK’s social media or advertising industries – whether influencer marketing agency or in-house brand manager – will, by now, be well aware of the twists and turns in the attempts to regulate influencer activity.

This latest update comes as the ASA claims that the public still finds it difficult to identify social media posts which are ads, and those which are non-paid endorsements or genuine posts. As part of an 18-month consultation with members of the general public, thousands were asked to distinguish between paid and non-paid promotions, different promotional labels and their understanding of influencer marketing. The ASA concluded from this research that many people still struggle to identify social media adverts and more clarity is urgently needed through “upfront disclosures, such as #ad”.

Advert or non-paid endorsement? 

Run-ins between the ASA and influencers, brands or advertisers often boil down to a simple question: whether the post in question could be clearly read like an advert, or if it could be mistaken as a non-paid endorsement – therefore misrepresenting the commercial intent behind the post. Matters get slightly more complicated when we consider that it isn’t just money that ads can be paid for in – the ASA also considers posts which are paid for “in kind” through the receipt of free goods as an advert.

Previously, there have been distinctions between #ad and #spon – the former used when influencer content has had some control from a brand or marketing agency, whilst #spon, still subject to CMA attention, was understood to be used when influencers keep full editorial control over their content, though still receive payment for the activity. However, last week’s announcement suggests that consumers are still not clear on the nuances of social media promotional posts – and the ASA is clear that the responsibility to educate comes from influencers, brands and advertisers engaging in the marketing practice; the advice that #ad is the necessary minimum for promotional content is a simple tool for all parties to get to grips with.

What constitutes as an advert?

It comes as the authority races to keep up with what has become the fastest-growing online customer acquisition method – influencer marketing. In the last year alone, the ASA has veered from individual penalisation – banning posts from Ex On The Beach star Jemma Lucy – to pursuing a more hand-in-hand approach with influencers, including a partnership with ITV to guide the latest Love Islanders on the do’s and dont’s of social media advertising.

Throughout the recent report, the ASA repeatedly called for fairness and transparency for consumers, admonishing influencers who fail to enforce this – claiming they eroded trust in the work of honest influencers, and ran the risk of financial and legal penalties. However, in the days since the authority’s announcement, I would wager that many influencers have put out promotional posts that are not clearly labelled as adverts, with many brands or agencies pursuing partnerships that do not ask influencers to plainly state the promotional intent of posts. This could be due to lack of knowledge of the update, or perhaps confusion around when and where to include ‘#ad’. 

To address this point, the ASA will be running influencer training in conjunction with the CMA to explain what constitutes an advert and how it should be identified as such.

Make sure you’re as clear as can be 

There are a number of other easy steps you can take to ensure you are as clear as can be when it comes to influencer marketing. As well as the ASA, any responsible party should also familiarise itself with its sister organisation the Committee of Advertising Practice (CAP), a self-regulatory body of members within the advertising industry. Last October, the CAP and CMA published a useful resource, “An Influencer’s Guide to making clear that ads are ads”.

Formal contracts should be another necessary minimum for brands and agencies that pursue influencer marketing. It should clearly ask influencers to label all posts to ensure transparency for consumers, and it must also set out the degree of editorial control they retain over the content. Within this, the brand or marketer should remind influencers of guidelines they can refer to, for example, those from the CAP.

What of those influencers, brands and marketing agencies who fail to implement #ad as a necessary minimum? Can we expect tougher punitive measures for mislabelling (or lack thereof), or ‘repeat offenders’, so to speak? We’ve previously seen high-profile social media stars from Made In Chelsea and Love Island receive warnings from the ASA for failing to clearly identify posts as ads. Is it only a matter of time until significant fines – and perhaps even court cases – are levelled against influencers and companies that do not make their post intentions clear? 

Taking responsibility

For many brands, influencer marketing is an effective way to reach consumers. With this comes a responsibility to protect those consumers and ensure that they understand they are being marketed to. Just as the ASA rushes to regulate an (until fairly recently) unregulated landscape, it is also the responsibility of influencers, brands, marketers and advertisers to rush to get to grips with evolving guidelines. ‘Ignorance is bliss’ is not protective enough, and these groups are bound by a duty to not mislead online followers. And in the current market, as clarified now by the ASA, it is as simple as the bare minimum necessity of “#ad”.

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