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Published April 26, 2018
Published April 26, 2018
Rachael Crowe via Unsplash

Social media influencers and native advertising are a stalwart of the millennial and Gen Z social media experience. The lines between pure “influencing” (“This blusher is so easy to use and really wakes me up #myownopinion #notanad”) and advertising (“You should really buy this face cream, my wrinkles have disappeared #ad”) are becoming increasingly blurred. As a result, there is an increasing focus from regulators and consumer bodies on stopping social media audiences from being misled by the influencers they so closely follow.

So what kinds of posts cross that advertising line? And how far over that line can an influencer go without breaching any relevant rules? What even are the relevant rules?

In this Part 4 in my series of articles on legal issues of relevance to the cosmetics industry, I will be looking at the following:

  • When does an endorsement by an influencer become an advertisement?
  • What additional requirements, if any, need to be complied with when a post is deemed an advertisement?
  • Why should brands care about all this?
  • What kinds of things can an influencer say about a product?
  • What can a brand do to try and prevent issues arising?

As with previous articles in this series, this article aims to highlight relevant issues, but should not be considered an exhaustive review of advertising laws or all rules relating to influencers, nor should it or any of the points made in it be considered legal advice. This article focuses on the UK position but also makes reference to the US rules.

Crossing the line: when does an endorsement by an influencer become an advertisement?

The UK’s advertising industry’s self-regulating regulator, the Advertising Standards Authority (“ASA”) has devised a helpful two-pronged test to help brands (and influencers) identify when posts need to be clearly marked as advertisements:

Payment to influencer + Control of post = Make it clear it’s an ad

Payment doesn’t necessarily need to be monetary; a brand may “pay” an influencer by sending them free products or inviting them somewhere, so any “free” gifts will likely constitute payment.

Importantly, payment alone isn’t enough to require clear identification as an ad—there must also be control by the brand. This can be in the form of, for example:

(i) a pre-written post that the influencer has to publish on their social media accounts;

(ii) guidelines for things the influencer should / should not say about a product or service; or

(iii) a requirement that the influencer can say what they like provided it’s positive.

What additional requirements, if any, need to be complied with when a post is deemed an advertisement?

For those posts that do cross that line, i.e., when both payment and control is present, the ASA has advised that it will be necessary to use “#ad” and make it clear that the post is an advertisement (e.g., by using #ad or similar wording at the start rather than end of a post). Further detailed guidance can be found here.

It should be noted that using #spon or #sponsored is no longer deemed sufficient due to the potentially confusing ways in which “sponsored” can be used. It is safer (and easier!) to use #ad at the very least to indicate that the post is an advertisement. As a rule of thumb, the main question to ask will be whether a consumer is likely to be misled by a post and consider it a genuine, non-advertisement feature. If yes, it is probably safest to change it.

Whilst the ASA guidance only apply to the UK, their underlying rationale in my view also provides helpful guidance for brands outside of the UK who aren’t sure when influencer posts need to be clearly marked as advertisements, as the presence of both payment and control without an indication of a commercial relationship will likely mislead as to the true nature of the post. This is of course subject to local rules, which I would strongly encourage you to check out if you are not based in the UK and/or your advertising reaches non-UK audiences.

The UK rules don’t necessarily help in scenarios where there is a longer-term sponsorship or relationship between a brand and a blogger, where every post won’t necessarily be controlled but the influencer has a vested interest in keeping the brand on board. By way of comparison, the equivalent US rules arguably formally require more transparency in this regard. In the US, the Federal Trade Commission (“FTC”) requires that a material connection between an endorser and an advertiser needs to be clearly and conspicuously disclosed. A “material connection” is any connection that might affect the weight or credibility that consumers give an endorsement. This could mean that long-term partnering between a brand and an influencer may need to be clearly disclosed if that connection is not reasonably expected by the audience; the brand may not have indicated what posts about the brand should contain, but it is more likely an influencer will want to be positive about the brand when there is a longer-term relationship to maintain. From a consumer protection perspective, such relationships should always be disclosed but this may not be so obvious on a strict interpretation of the ASA test. Again, the main question to ask will be whether a consumer will be misled. If they will (or are likely to be), making it clear that it is an advertisement may be the safest course of action.

Why should brands care?

In short, following the ASA rules will help to protect a brand’s reputation. In the UK at least, there are no monetary fines for breaching the ASA’s rules, but if a complaint is made and the ASA upholds it (or even if it doesn’t), the decision will be published on the ASA’s website. Decisions are published every Wednesday and are made available to the press beforehand. If a decision is picked up by the press, the attention generated can have a negative impact.

I refer to the brand rather than the influencer because ultimately, if these rules are breached, it is the brand rather than the influencer who will be found to have breached the rules, but the decision will often mention the influencer, which could have a knock-on effect for them, e.g., will other brands be as willing to work with the influencer after they’ve been publicly called out as misleading?

What can and can’t an influencer say about a product?

Even if an influencer does all the right things as far as an advertising regulator is concerned, including #ad and making it clear to their followers at the start of a post that it is an advertisement will not provide the influencer with a carte blanche to simply say what they like about a product.

In the world of cosmetics in particular, where claims can easily stray into the medical sphere, it is all the more important to take care over what claims are being made about a product. Brands, to the extent they will control content, should ensure to strongly impress on influencers the importance of only making claims that can be substantiated. Brands may do this by providing guidelines or lists of approved claims. At the same time, it should also be noted that this could contribute towards a finding of the brand having “control” over the influencer which meets one of the two limbs of the test to determine whether a post must be labelled as an ad. This is a fine line which requires careful navigation.

Even if an influencer is simply asserting their own opinion about a product and therefore isn’t making a claim per se, a brand needs to take care not to endorse it (by e.g. retweeting or reposting) as that could be viewed as a claim directly from the brand itself, and if that can’t be substantiated, the brand runs the risk of being liable for making misleading claims which could attract the attention of the ASA as well as bodies such as Trading Standards, the UK’s consumer protection body.

What can I do to try and prevent issues arising?

While pretty much impossible for a brand to exert full control over what an influencer says or does (and brands may not wish to assert control at all if they want genuine product reviews for example), brands should consider providing the influencer with a set of guidelines. It will be up to the brand as to whether or not the guidelines should be part of the contract with the influencer and therefore potentially enforceable in the event of a breach (this may depend on the dynamic with the influencer and the broader strategy and approach of the brand).

It will be worth keeping an eye on changes social media platforms are making to make it easier for influencers to mark their posts as “paid partnerships” or similar. The ASA (or relevant regulatory body) rules should be complied with in any event, but making use of platform tools so social media audiences know when they are being advertised to will only help demonstrate that a brand is a responsible advertiser.

With thanks to Niara Lee and Lillian Meldrum who provided helpful insights.

Read the full series:


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