New CAP/CMA Guidance: #Ad(vice) for Influencers

What should influencers do to avoid falling foul of the Committee of Advertising Practice’s (CAP’s) standards on labelling ads?

The key takeaway

The guidance puts it very simply: “Consumers should be able to recognise that something is an ad, without having to click or otherwise interact with it. Since it needs to be clear/obvious, consumers shouldn’t have to work to figure it out”. 

The background

On 6 February 2020, CAP and the CMA published an updated version of the guidance: “Influencers’ guide to making clear that ads are ads”. The new edition takes on board feedback on the original version of the guidance (which was published on 28 September 2018) and further ASA research on ad labelling. 

The original guidance attempted to bring together all the advisory information influencers need to ensure they do not breach advertising rules and provisions in consumer protection legislation. In its updated form, the guidance sets out what the relevant rules are, how to make clear ads are ads and who enforces what. 

In addition to the updated guidance, CAP has also issued two new advice notes for influencers, namely “#Ad(vice) – Making clear that an ad is an ad” and “Influencing responsibly – the ASA’s Jurisdiction”, as well as some general guidance to help ensure that influencer marketing is “obviously identifiable”. In addition, the ASA published a blog on influencing responsibly called “Musings beyond the code”. The blog sheds light on some brand and influencer practices which have been observed in light of and despite the rules. 

The guidance and advice notes

Some of the most relevant points in the guidance and the two advice notes are as follows: 

• when brands have paid influencers, any of the influencer’s posts promoting/endorsing the brand or its products/services becomes subject to consumer protection law
• in terms of what counts as “payment”, the guidance points out that this includes any kind of monetary payment, including a free product/service, whether requested or not, (or loan of the same), commission or any other incentive
• turning to when disclosure of such “payments” is necessary, the guidance highlights that this includes situations where influencers refer to or feature a brand/product/service in any way, where the content is controlled by the relevant brand, or in cases of affiliate marketing (eg the influencer posts hyperlinks or discount codes)
• it should be clear when ads are ads and consumers should not have to work to figure this out. It may be more difficult where ads appear alongside organic/editorial content in a similar style and all parties involved in creating or publishing the content are responsible for making sure it is clear that it is an advert or has a commercial message. The guidance recognises that when individuals promote their own products/services on their channels, consumers are more likely to be able to recognise that the content is an ad, whereas influencer marketing or affiliate marketing is less likely to be clear
• ads which are similar in tone to other editorial content are very likely to need a label. Labels should be prominent, up front and capable of making the commercial message “obviously identifiable”. The label should appear before the consumer interacts with the ad (either before viewing it, clicking on it, or otherwise engaging with it). Both the guidance and the #Ad(vice) give examples of labels which are clear (eg “Advertisement Feature”) and those which are risky (eg “Sponsored”)
• the #Ad(vice) also highlights that, when targeting under-12s, the fact that an ad is an ad should be made much clearer and gives guidance on how it expects influencers to do this. For example, the #Ad(vice) suggests the label should be prominent (eg in a bright colour), timely (presented at/before the ad is ‘activated’ or viewed) and the identity of the marketer should be clear
• the advice note “#Influencing responsibly – The ASA’s Jurisdiction” provides an indicative (rather than exhaustive) guide to what online content falls within the remit of the ASA’s jurisdiction.

Broadly, the advice note identifies three kinds of ad which the ASA regulates: paid-for space (eg banner ads and pop-ups), advertorials and “directly connected” ads (eg non-paid for spaces which are within the control of the brand, such as a brand’s own website). 

Why is this important?

Influencer marketing remains the go to marketing technique of our times, and the updated guidance and new advice notes should be welcomed as they help reinforce those practices which CAP expects influencers to be implementing. 

Any practical tips?

Shape your branding policies to match the guidance and advice notes. And don’t forget to set up systems (eg one of your marketing team) to track influencers acting on your behalf – that way you can catch bad behaviours quickly (ie if they fail to disclose correctly) - and before the regulators do!