The Committee for Advertising Practice (CAP) has issued revised guidance for influencer marketing in a bid to ensure influencers make clear when their content is advertising. 

The ‘Influencer’s Guide to Making Clear that Ads are Ads’ (the Influencer’s Guide) is a best-practice guide setting out the rules of influencer marketing, including advice regarding affiliate marketing, how to make clear when ads are ads, and what happens if the content is not disclosed. 

The updated guidance was published on 23 March 2023.

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The Influencer's Guide

The Influencer’s Guide sets out a summary of what brands and influencers must do to make clear when content is an advertisement, such as: 

  • Including clear and prominent ‘Ad’ labels on the content. The Influencer Guide contains a list of recommended labels for this purpose that consumers are most likely to understand, such as #Ad or #Advert. Some of the labels that the Influencer Guide recommends against using include “in partnership with”, #affiliate, or “supported by/funded by”, as consumers do not clearly understand such phrases to be an advertisement;
  • Making the label obvious by making it clear, prominent, and upfront by considering what is appropriate for the format of the content (i.e., a post, story, reel etc.). The Influencer Guide stresses that consumers should not be required to search or check the content itself to know whether it is an advertisement. Therefore, the label must not be buried in many other hashtags or content. 

The Influencer Guide also contains a helpful summary of the legal framework governing the advertising sector and the operation of influencers to aid compliance. The primary areas of law regulating this area include:

  • Consumer Protection from Unfair Trading Regulations 2008 (CPRs). The CPRs make unfair commercial practices against the law – which includes failing to make clear when social media content promoting a product or a service is an advertisement; and 
  • UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code). The CAP Code contains rules about how advertisements should be made recognisable as marketing content to consumers and the steps that should be taken to avoid misleading the public. 

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What does this mean for brands?

breach of the CPRs is against the law. The Competition and Markets Authority and Trading Standards Services have powers to investigate and take legal action against those who breach the CPRs. 

The Advertising Standards Authority (ASA) enforces the CAP Code and has a range of powers to sanction those who do not comply. Brands can be added to the ASA’s non-compliance online advertiser’s page, alerting consumers of which brands have failed to comply.

Non-compliance by the influencer, therefore, carries the risk of negative publicity for a brand, given that the ASA has the power to publish any unfavourable finding it makes. 

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What are the next steps brands should take?

To ensure effective collaboration between a brand and an influencer, an influencer agreement or brand ambassador agreement should be entered into, containing the following terms:

  • The obligations of the influencer when generating the social media content and how it is to be uploaded to the social media platforms, including the degree of freedom the influencer is entrusted with for such process. This could include:
    • The labels the influencer must use when uploading the content to ensure compliance with the legal and regulatory requirements;
    • The timing that any content must be uploaded to the platforms to generate maximum user traffic and consumer engagement; and 
    • Whether the form and nature of any content must be pre-approved by the brand before it is made publicly available;
  • Whether the influencer is engaged on an exclusive or non-exclusive basis for the brand;
  • Whether the brand wishes to have its own set of behavioural guidelines that influencers must follow;
  • Whether the nature of the product the brand wishes the influencer to endorse satisfies any regulatory requirements, for example, the CAP Code requirements as to who can and can’t advertise medicine; and
  • The obligations of the influencer upon the termination of their appointment and whether the brand is to have the sole right to manage any public communications in respect of the same. 

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Transparent behaviour

As part of our 2023: a Year of Focus on Online Advertising, Influencers, and Greenwashing, we identified the use of hashtags and the obligations placed on influencers to act clearly and transparently with consumers as an area of potential change and regulatory development throughout 2023. 

As highlighted in our article, influencers and brands should remain abreast of legal developments in this area, and ASA action should be taken for any failure to comply to ensure that any influencer contracts entered into reflect updated regulatory obligations. 

Our Commercial Solicitors advise on the legal and commercial risks of entering into influencer agreements. Myerson has been recognised as a Top 200 UK Law Firm.

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If you have any questions or would like more information regarding how our Commercial Team can assist you further with your advertising practices, you can contact Commercial Team below for further information. 

0161 941 4000