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New ASA report reveals "unacceptable" failure by influencers to abide by the rules

Posted on 24 March 2021

A report published by the Advertising Standards Authority (ASA) has found that one in four Instagram Stories posted by influencers included advertising content, but that just 35% of them were clearly labelled and obviously identifiable as such. The ASA has referred to this level of non-compliance as "unacceptable" with ASA Chief Executive, Guy Parker, saying:

There’s simply no excuse not to make clear to the public when positive messages in posts have been paid-for by a brand. While some influencers have got their houses in order, our monitoring shows how much more there is to do. We’ve given influencers and brands fair warning. We’re now targeting our follow-up monitoring and preparing for enforcement action.

This is a clear message to both influencers and the brands that they work for that enough is enough.

A bumpy road

Influencer marketing has been a hot topic over last few years given its emergence as a pivotal form of advertising. One sector that has embraced this form of marketing is the beauty industry. This was highlighted in our recent article looking at the enormous impact that influencer marketing has in promoting beauty products, particularly during a pandemic, and the key rules to be aware of.

However, influencers have been slow to embrace the advertising rules. Back in 2019, the Competition and Markets Authority (CMA) secured written undertakings from social media stars including Alexa Chung and Millie Mackintosh agreeing to make their social media posts more transparent in relation to paid-for endorsements. Since then, the ASA has offered advice, training and easy-to-understand resources to help the influencer marketing community and brands understand their responsibilities under the ad rules. In February 2020, we reported on the ASA and CMA's joint guidance, intended to provide greater clarity to influencers around ad labelling and how to make it clear in their posts that "adverts are adverts".

Given the above, when the ASA undertook a three week monitoring exercise in September 2020 reviewing the Instagram accounts of 122 UK-based influencers to assess whether advertising content was being properly disclosed, no doubt they were hoping for better results. However, the outcome was that only 35% were actually abiding by the rules. The report found:

  • Inconsistent disclosure across Stories - when a piece of ad content spans a number of consecutive Stories, influencers were not labelling each Story as an ad.
  • Inconsistent disclosure across Stories, IGTV, Reels, posts – there were instances where a post would be accurately disclosed as an ad but a corresponding Story was not.
  • Visibility of ad labels – ad labels were sometimes in a small font, obscured by the platform architecture or otherwise difficult to spot; mainly due to being in a very similar colour to the background of the Story where it was placed.
  • Affiliate content is still an ad – there was use of #affiliate or #aff with no additional upfront disclosure; those labels were not enough on their own to disclose to users the advertising nature of the content.
  • Own-brand ads – Influencers were relying on bios or past posts to make it clear to consumers that they are connected to a product.

Cracking down

The ASA has contacted all the non-compliant influencers identified through their research, as well as a number of brands, and given them a final warning. They have been told that if further breaches are revealed, action will be taken. This might include promoting their non-compliance on a dedicated page on the ASA website, promoting their non-compliance through the ASA's own targeted paid search ads, and working directly with the platforms and the CMA on further enforcement action.

This serves as a reminder to influencers and brands alike that the advertising rules apply across all platforms including Instagram, and a warning that the ASA is proactively monitoring compliance. This is clearly an area of great public interest - the ASA has referred to recent research highlighting that consumers are struggling to distinguish certain types of online ads from surrounding content.

Both the influencer, the brand and any agents involved in creating or publishing the content are responsible for ensuring that it is clear when it is advertising or has a commercial message. It must be obvious to consumers before they read, ‘like’ or otherwise interact with a post if what they are engaging with is advertising. In most cases, the use of #ad is the clearest way of communicating the commercial nature of social media content. Alternatively, a platform’s own disclosure tools, such as Instagram’s Paid Partnership tool, can also help to distinguish advertising from other content.

Brands should ensure that they put in place appropriate agreements with influencers and agencies which include clear social media guidelines; take down procedures; and consequences for non-compliance. It is also essential to conduct due diligence on an influencer prior to entering into an endorsement contracts. Any history of behaviour that is not consistent with the brand's values, or even simply of erratic behaviour, will be a warning flag that the association might cause damage to the brand's reputation. However watertight the termination provisions, and however quickly material is taken down, it will often be impossible to fully mitigate the damage. Even where there are no obvious danger signs and the influencer's services are engaged, the brand should make sure that it has a PR strategy in place so that it can act swiftly if a problem arises.

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