Influencer posts and affiliate links: the whole marketing chain must know the rules

The question

Why did the Advertising Standards Authority (ASA) rule against Sainsbury’s on the use of an affiliate link by an influencer (noting that Sainsbury’s had no involvement in the creation of the post) and what steps could Sainsbury’s take to help prevent the problem from happening again?

The key takeaway

 The combination of influencer marketing and affiliate links is a dangerous combination from a compliance perspective, especially if there are a number of different parties (from brand to intermediaries to influencer). It’s important to ensure that everyone in the chain knows the rules and that the advertising bolts are tightened as much as they can be to avoid a breach.

The background

An Instagram story posted by Kayleigh Johnson featured a box with the question “Are you going to breastfeed? If not what formula will you use?”. Text underneath explained her approach to formula feeding and also included an affiliate link titled “Formula we use” which linked to a product page on Sainsbury’s website for an infant formula milk powder.

The CAP Code prohibits the marketing of infant formula and the following issues were raised for the ASA to assess: (1) whether the post qualified as a marketing communication and therefore breached the CAP Code; and (2) whether the post was obviously identifiable as a marketing communication.

The affiliate marketing structure in this case involved multiple parties:

• the influencer who created the post with an affiliate link
• Stylink Social Media GmbH who managed the affiliate links
• CJ Affiliate Platform who hosted the affiliate program for Sainsbury’s, and
• Sainsbury’s who operated the program and issued compliance rules.

The development

On the first issue, the ASA ruled that including an affiliate link to infant formula constituted a prohibited promotion under the CAP Code. Sainsbury’s acknowledged that the ad should not have appeared, not least as its affiliate terms specifically prohibit marketing infant formula. The interesting part of this decision is the depth which the ASA went into assessing each party’s involvement in the affiliate chain, which helps underline the need for everyone in a chain to understand and comply fully with any brand requirements and limitations. Following the incident, Sainsbury’s updated its affiliate program terms to provide clearer compliance guidelines.

On the second issue, the influencer had used a label “aff” which was intended to be an abbreviation for “affiliate”. However, the ASA deemed the label insufficient for two reasons:

• “Aff” was positioned in a corner of the story and overshadowed by other text, making it unlikely to be noticed, and
• most consumers would not recognize “aff” as an abbreviation for affiliate, and the ad’s short lifespan (five seconds) further reduced transparency.

The ASA held that the labelling failed to make the ad obvious to viewers.

Why is this important?

The case highlights the care that is needed by all parties in an affiliate marketing chain to ensure that there is no breach of advertising regulation. Retailers, influencers, and platforms must all collaborate to ensure compliance. The decision also reminds us that abbreviations like “aff” or “affiliate” are wholly inadequate when it comes to advertising disclosures.

Any practical tips?

When running affiliate schemes, consider:

• clear ad labelling: posts containing affiliate links must be clearly identified as ads. Use universally understood labels like “#ad” and ensure they are prominently displayed
• review affiliate program terms: businesses should frequently audit affiliate agreements to ensure compliance, explicitly outlining prohibited promotions and disclosure standards
• collaborate across the chain: platforms, influencers and brands must work together to proactively address compliance issues. Training and resources can help influencers understand their obligations under the CAP Code
• test ad visibility: conduct user testing to ensure that ad disclosures are clear and visible across different platforms and formats, especially for transient content like Instagram Stories.

Winter 2024