Influencer Marketing in the UK - The Regulator is Watching

However, the UK’s advertising regulator (the Advertising Standard’s Authority (“ASA”)) and the Competition and Markets Authority (the “CMA”) has paid keen attention to influencer marketing over 2021 and 2022. In fact, the ASA monitored certain influencers over a three-month period and published a report (the “Report”)[1] in March 2021 concerning the issue of influencers failing to properly disclose their advertising content. The ASA also broadcasts a public list of influencers who regularly breach the Code of Non-broadcast Advertising and Direct & Promotional Marketing (the “CAP Code”).[2] This can create brand reputational issues as the combination of well-known brands and celebrities often catches the media’s attention. In light of this, we discuss some common issues in influencer marketing below, including some ASA recommendations.

Disclosures

The ASA receives many complaints on this topic, and as flagged in the Report: “Brands are held equally responsible for failing to adequately disclose advertising content.”[3] In summary, the key rule is that influencers must disclose that their posts are adverts (if they are indeed adverts). This follows from obligations under law and the CAP Code.[4]

The ASA has made some of the recommendations below,[5] which can be built into underlying contracts with influencers, or as part of brand guideline policies and briefs.

• Use the correct labels, such as: Ad, Advert and Advertisement
• Avoid labels such as: Thanks to [brand] for making this possible, @[brand], Gifted, Spon/Sponsored/Sponsorship, Affiliate
• Remember these requirements don’t just apply to social media posts, but also to content such as Instagram stories, reels and IGTV
• Present disclosures obviously. A consumer should not need to click “see more” to reveal “@Ad” hidden amongst other tags

Misleading Claims

For advertising more generally, the most common complaint received by the ASA relates to misleading claims. Under CAP Code Rule 3.1, adverts must not be materially misleading or likely to do so. The ASA assesses the overall impression of the advert, including any particular claims about the products or services advertised.[6]

In February 2021, the ASA upheld two rulings against brands regarding influencers who made claims about the efficacy of a fake tanning product alongside images enhanced by Instagram filters.[7] Whilst the ASA recognised the wide-spread use of filters, they concluded that consumers would believe that using the product would result in a darker complexion, similar to the filtered image. This created a misleading impression of the product.
Given the above, brands and influencers should carefully consider making claims (particularly in light of how consumers could interpret them) and have evidence to back up any claims.

Prizes Draws and Giveaways

Prize draws are popular promotional strategies for launching products and generating audience interest. However, this is heavily regulated area and brands should consider any legal requirements carefully before arranging competitions with influencers.

Section 8 of the CAP Code[8] covers the rules on promotional marketing, such as:

• Promotions must be conducted promptly, efficiently and deal fairly with participants
• Promotions must be conducted under proper supervision, with adequate resources available to administer them
• Prizes must be awarded as described in marketing communications or in reasonable periods, normally within 30 days
• All applicable significant conditions must be communicated in marketing communications, such as how to participate, start dates and closing dates
• Promoters must not exaggerate the chances of winning

A high- profile influencer was caught out when she set rules of entry into a prize draw, but selected a winner from a group of 100 participants when potentially millions had entered.[9] The ASA stated that given the influencer had over 5 million followers and the prize was £8,000, a large number of entrants should have been anticipated and planned for.

Conclusion

Influencer marketing can be a powerful form of advertising for brands, both to promote particular products and a brand’s reputation. A carefully crafted influencer marketing campaign can be very effective at targeting the product/brand’s core market, creating high conversion rates. However, it is not without its risks, and any brand seeking to promote through the use of influencers must be aware of, and comply, with the up-to-date rules in this area.

[1] https://www.asa.org.uk/static/dd740667-6fe0-4fa7-80de3e4598417912/Influencer-Monitoring-Report-March2021.pdf

[2] https://www.asa.org.uk/codes-and-rulings/advertising-codes/non-broadcast-code.html

[3] https://www.asa.org.uk/static/dd740667-6fe0-4fa7-80de3e4598417912/Influencer-Monitoring-Report-March2021.pdf

[4] The Consumer Protection from Unfair Trading Regulations 2008

[5] https://www.asa.org.uk/static/9cc1fb3f-1288-405d-af3468ff18277299/INFLUENCERGuidanceupdatev6HR.pdf

[6] https://www.asa.org.uk/advice-online/misleading-advertising.html

[7] https://www.asa.org.uk/rulings/skinny-tan-ltd-in-association-with-elly-norris.html and https://www.asa.org.uk/rulings/we-are-luxe-ltd-t-a-tanologist-tan-in-association-with-cinzia-baylis-zullo.html

[8] https://www.asa.org.uk/type/non_broadcast/code_section/08.html

[9] https://www.asa.org.uk/rulings/molly-mae-hague-g20-1078674-molly-mae-hague.html