Increased scrutiny of influencer and affiliate marketing communications

Recent ASA Rulings

• Wenzhou Xinyu Maoyi Youxian Gongsi t/a Xinyu Trade, an influencer posted Instagram stories promoting taps and sinks. Although she had not received payment, free products or any other incentive from the brand, she did include a link which led to her Amazon storefront, where she would earn a commission for customer purchases. However, the stories did not clearly identify the content as marketing, nor was there a visible disclosure such as “ad”. The ASA ruled that these stories were misleading, as consumers didn’t understand the commercial intent at first glance.
• THG Beauty Ltd t/a Look Fantastic, an influencer featured an Instagram story with affiliate links promoting perfumes. These affiliate links would earn the influencer commission if customers purchased products after clicking on the link. Although the influencer was not directly engaged as an influencer, nor been gifted any products, the brand did operate a brand influencer platform through which influencers were able to access affiliate links. The ASA held that the influencer’s disclosure of the commercial intent behind this post was insufficient, and whilst the brand influencer platform did contain a “paid links” notice, this only appeared after users had already clicked on the affiliate link and engaged with the post.
• Endrick Clothing Ltd, an Instagram post from the account of a TV personality featured a groom lighting a cigar to advertise clothing. It was held that, not only did the TV personality not make it sufficiently clear that his post was directly connected to the sale of goods, but also that the post depicted smoking in an appealing manner, suggesting it was part of a glamourous and aspirational lifestyle, and therefore breached the CAP Code regulation regarding social responsibility.
• Meggan Kirkland, an influencer posted a giveaway in which users would need to share her post to their own stories for a “bonus entry” into the giveaway. The ASA ruled that the CAP Code required promoters to conduct promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. The ASA found that entrants with private Instagram accounts couldn’t be directly verified due to platform restrictions, and therefore it would be impossible for the influencer to identify whether the entrants with private Instagram accounts had qualified for a bonus entry. Therefore, entrants who shared the post as a story from a private Instagram account would not increase their chances of winning the prize, and the promotion was not administered fairly and breached the Code.

In all the above influencer marketing cases, the ASA upheld the complaints and required that the ads must not appear again in the form investigated. This demonstrates the serious consequences of not properly complying with the CAP Code.

What can brands and influencers do to avoid upheld complaints ASA sanctions?

Both influencers and brands need to take proactive steps to ensure compliance with advertising standards, including:

• 1. Using clear and prominent disclosures, such as “Ad” or “Sponsored” when promoting affiliate links or sponsored content. These disclosures should be placed at the beginning of the content and be visible from the outset.
• 2. Know and understand your affiliate network’s disclosure requirements. Affiliate platforms require compliance with advertising regulations, and even if the brand itself isn’t directly involved, influencers must ensure compliance with these terms in order to avoid misleading consumers. Disclosures should be placed in the relevant content, ensuring that consumers are not required to scroll or click further to understand the commercial nature of the post.
• 3. Maintain fairness and transparency in all promotions. Marketers need to understand the limitations of the platforms they are advertising on, ensure that the requirements of a promotion are easy to understand and can be administered fairly to all entrants. It is also important for any additional terms of a promotion to be pinned to the post so that they remain accessible to all participants.
• 4. Ensure that any marketing communications are socially responsible, and do not promote unsafe, irresponsible or illegal acts. The following topics have additional rules and restrictions to ensure that advertising is not socially irresponsible: alcohol, drugs, tobacco, gambling, motoring, body image, children and targeting, objectification and violence.

If you need advice on how you should approach engaging in marketing communications as a brand or influencer, speak to our specialist lawyers. Find out more here.