How to win friends (followers) and influence people
The fairly recent, but meteoric, rise in influencer marketing promotions has attracted the attention of the UK’s independent advertising regulator, the ASA.
“Traditional” celebrity endorsement deals, where a big brand pays a big star to promote their products, have been around for hundreds of years. Notable celebrity tie-ins include Tiger Woods for Nike, J-Lo for L’Oreal and George Clooney for Nespresso. These arrangements are usually tightly controlled, with the advertiser dictating the content and distribution of the promotion and the celebrity receiving a significant fee in return.
For smaller businesses, such celebrity deals have been out of their reach; but a combination of reality stars, social media and lockdown have opened the door for smaller businesses (as well as many bigger ones) to leverage the popularity of reality stars and online influencers to promote their products. However, such promotions are not risk-free.
The CAP Code and the role of the ASA
Non-broadcast advertising (including online advertisements) is self-regulated by the advertising industry. Whilst the ASA investigates and provides rulings on breaches of the CAP Code (the UK Code of Non-Broadcast Advertising and Direct & Promotional Marketing), it does not have any formal powers to issue fines or other sanctions for non-compliance (which would need to be done through the courts and/or Trading Standards). Instead, responsible advertisers are expected to adhere to the Code and abide by any rulings issued by the ASA, which are published on the ASA’s website.
There are a number of principles set out in the CAP Code which advertisers must comply with when promoting their products online and in other forms of non-broadcast advertising. Some of the general obligations include ensuring that marketing communications are clearly identifiable, do not mislead or exaggerate and do not contain any material that may cause serious offence, fear or distress; whereas some obligations are specific to certain sectors, such as the rules around advertising of alcohol, financial and medical products and lotteries.
Influencer marketing
Social media offers retailers the perfect opportunity to connect with individuals in a personalised and more subtle way than traditional print and TV advertising. Connecting with trusted social media personalities with a loyal following can really drive sales and expose the brand to a wider target audience. However, it can also be damaging to the reputation of the brand or influencer if the tie-in does not work, whether that is due to a breach of the CAP Code, an “unauthentic” endorsement or a lack of due diligence by either party.
The ASA published a report on influencer activity earlier this year, which highlighted the volume of advertising conducted on social media. After monitoring a selected group of influencers over a three week period, the ASA found that 65% of the monitored Instagram stories (over 15,000) were not clearly labelled and identified as advertising content (as required by the CAP Code). Influencer posts make up a third of all online complaints made to the ASA.
Such is the scale of non-compliance across social media platforms that the ASA now has a dedicated page displaying the names of social media influencers who have repeatedly failed to disclose advertisements on their channels. There are currently six reality stars on the list, mostly former Love Island contestants. The ASA has threatened to take out its own paid ad campaigns to highlight the non-compliance by these influencers if they do not change their practices.
When it goes wrong
There is currently a huge disconnect between the ASA focus on protecting consumers from subliminal advertising and the influencer/advertiser focus on maintaining an “authentic” image that is not tainted by sponsorship. The appeal of these social media pages is that they give followers an insight into the “real” life of the influencer or celebrity, which is aspirational and which many followers will want to emulate. If the followers realise that the content is only being promoted due to the financial relationship with the advertised brand, the content may lose some of its appeal. In turn, this can lead to the influencer losing followers and this diminishes their appeal for other brands.
Examples of recent influencer posts which have fallen foul of the CAP Code include three reality stars from Ex on the Beach, Geordie Shore and TOWIE who promoted individual voluntary arrangements (IVAs) with a company called “Debt Slayers”, without making clear that such posts were advertisements and exaggerated the ease with which debts could be reduced; Jodie Marsh (named as a non-compliant influencer) who included health claims on posts for various products distributed by her own company JST Nutrition and failed to make clear her commercial relationship with JST Nutrition (even though this would most likely be known to her regular followers); Charlotte Dawson who used misleading filters on a post to advertise make-up and failed to label the posts as #ads; and Zara McDermott (Love Island), a Missguided influencer, who tagged her posts with the phrase “my @missguided edit”, but, in the ASA’s view, did not sufficiently disclose the nature of her commercial relationship with Missguided. The ASA are also understood to be investigating Katie Price who recently promoted a rogue trader who is believed to have conned her followers out of thousands of pounds.
How to get it right
Here are some practical tips to help you get things right if you are working on a social media campaign with a celebrity or influencer:
- #ad. Every post should be clearly labelled as an advertisement for your brand (including where the influencer is not being paid but is only receiving your products as gifts). This is the case even where a commercial relationship has previously been made known to consumers. #ad is the ASA’s preferred form of labelling and this must be prominently displayed on each post/story. Some social media platforms have introduced tools to allow brands to advertise more transparently on their platforms, such as the “Paid partnership” tag on Instagram. Other hashtags such as #ambassador or #affiliate or mentioning the name of the brand being promoted, are often not sufficient to comply with the CAP Code on labelling.
- Consider training. It is common to require the influencer to comply with applicable laws and the CAP Code, but the influencer may not be aware of the rules which apply to them. You could consider offering training to the influencers you work with, as well as your own marketing teams, to ensure that you do not attract the attention of the ASA.
- Advance approval. Often it is not appropriate to review every social media post, given that social media posts should be current and reflect what an individual is doing at that particular time. An Instagram story of an influencer attending an event would not have the same appeal if posted three days later. However, for critical posts or competitions, or where the influencer has only agreed to a limited number of posts, it may be worth reviewing certain posts in advance.
- Competitions. Running a competition through social media is extremely popular but can also be tricky to get right. The ASA has criticised advertisers in the past for failing to disclose the competition as an advert, requiring entrants to perform a complex sequence of actions that are difficult or impossible for the advertiser to track (e.g. sharing posts via a private account) and not making it clear to entrants that the competition is being run across multiple channels. There are specific rules in the CAP Code for competitions.
- Platform rules. Don’t forget that the social media platforms also have their own rules regarding advertising.
- Review the ISBA Code of Conduct. The Incorporated Society of British Advertisers has recently launched its own Code of Conduct which seeks to clarify the commitments and expectations of advertisers and influencers who work together. A number of highly reputable FMCG companies have signed up to the voluntary code (such as PepsiCo, L’Oreal and Tesco), along with some influencers. Even if you are not a signatory to the Code, it contains some helpful guidance and points to consider when working with influencers.
If you’d like to discuss any of these issues or have questions about the article, please contact Danielle Amor in the commercial team.
Danielle Amor
Danielle advises on a range of commercial IP agreements, with a particular focus on the acquisition, protection and exploitation of soft IP, as well as data compliance. She has extensive experience working for clients in the media, retail, manufacturing and fashion industries. Danielle trained with an international law firm in London and has also worked in-house as legal counsel at Manchester United.
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