Social media influencers ‘on notice’ by ASA over widespread failure to disclose ads

ASA spot check shows 'unacceptable' levels of non-compliance with ad rules by social media influencers. Warning by ASA that enforcement action could follow

06 April 2021

'Unacceptable' levels of non-compliance

The ASA have recently published its report (18 March 2021) on influencer ad disclosure on social media following a monitoring spot check to assess whether advertising content was being properly disclosed.

This spot check was undertaken as part of the ASA’s increased monitoring function, and included an analysis of over 24,000 Instagram ‘Stories’, posts, IGTV and reels across 122 UK-based influencers. In its analysis, the ASA found that nearly one in four of the Stories were marketing but considered that only 35 per cent of them were clearly labelled and obviously identifiable as advertising. Common problems areas identified by the ASA included inconsistent disclosure across Stories and visibility of ad labels (we expand on this further below).

The report also considered ad compliance by sector including beauty, clothing and leisure, and found that no sector stood out as having an acceptable level of compliance when it came to labelling ads. The ASA concluded that this suggests that neither influencers nor the brands are taking enough care to ensure consumers know when ad is an ad.

What do the ad rules say?

The CAP Code, enforced by the ASA, applies to most forms of influencer marketing. The relevant ad disclosure rules in the CAP Code provide that:

  • Marketing communications must be obviously identifiable as such (Rule 2.1).
  • Marketing communications must not falsely claim or imply that the marketer is acting as consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context (Rule 2.3).
  • Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them 'advertisement feature' (Rule 2.4).

Consumer protection law, enforced by the CMA also applies to influencer marketing – this prohibits ‘unfair commercial practices’. This includes misleading consumers about promoted content.

Key recommendations for influencers and brands

The ASA makes clear that in most cases, the use of #ad (or similar) is the clearest way of communicating the fact that content is advertising. Alternatively, the ASA recommends that the platform’s own disclosure tools, such as Instagram’s Paid Partnership tool can also help distinguish advertising from other content.

Helpfully, the report also lists key recommendations based on the common issues identified in their monitoring:

  • Inconsistent disclosure across Stories – when a piece of ad content spans a number of consecutive Stories, unless it’s absolutely clear that this is part of the same posting and it would not be possible to miss the labelled Story, each Story must be labelled as an ad;
  • Inconsistent disclosure across formats – disclosing in a post but not in the corresponding Story, IGTV video or Reel will not be compliant. Each is an ad and should be disclosed as such – including when linked content appears on a different platform;
  • Visibility of ad labels – where Stories were labelled as ads, the ASA noted that labels were sometimes in a small font, obscured by the platform architecture or otherwise difficult to spot e.g. due to being in a very similar colour to the background or appearing ‘below the fold’. Including a label isn’t a ‘tick box’ exercise, it needs to be clear to your audience, across devices;
  • Affiliate content – using #affiliate or #aff is not likely to be enough on its own to disclose to the audience the advertising nature of the content. Including a ‘Swipe Up’ on its own isn't likely to be enough either;
  • Own-brand ads – references in bios or past posts are not sufficient to make it clear that another post is advertising – including when an influencer is advertising their own products. It needs to be clear upfront in each post.

Cracking down on poor ad labelling

The ASA have contacted the influencers to put them on notice that enforcement action will be taken if future spot checks reveal further incidences of non-compliance. Sanctions may include promoting their non-compliance on a dedicated page on ASA’s website and targeted paid search ads on platforms.

This latest announcement from the ASA is a clear indication that it is proactively monitoring compliance in this area – for influencers and brands alike, it will be important to take heed of the ASA’s recommendations or risk enforcement action, as well as any associated reputational damage.

How can Burges Salmon help?

For further information, please contact Helen Scott-Lawler or Amanda Leiu.

This article is part of a series which addresses the key issues and considerations for brands when advertising, which we are releasing following the ASA’s release of a five-year strategy which includes a new focus on reinforcing regulations around online advertising. You can view our previous post on key considerations for social influencer agreements here.

Key contact

Helen Scott-Lawler

Helen Scott-Lawler Partner

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