By Kostya Lobov (@LawyerKostya), an advertising, IP and regulatory lawyer at Harbottle & Lewis.
The separation of editorial and ad content is a concept almost as old as advertising itself, but one which continues to yield ASA adjudications by the dozen each year.
Last week (5 September), the ASA, in partnership with pollsters Ipsos Mori, published new research exploring the general public’s understanding of influencer marketing. The ASA’s conclusion was clear. Even where social content is ‘clearly commercial’ in nature — i.e. by using product placement, or ‘shop now’ buttons — there is still public confusion around whether it constitutes an ad.
Like the general public, influencers and the brands that work with them seem to be particularly prone to misinterpreting at what point a social media post becomes an ad as well.
The ruling against The White Star Key Group, concerning TV personality Jemma Lucy’s Instagram post promoting various weight loss products, is just one recent example.
Whether or not this post was published as a ‘favour to a friend’, as White Star claimed, the CAP Code is clear: where a brand has (i) control over the content being posted, or the manner or schedule of posting, and (ii) money, or something similar to money, changes hands, the result is an ad and it must be made obviously identifiable as such to the average consumer.
In this case there appeared to be no dispute that the content had been written by the brand and that a commercial relationship existed between the parties.
The potentially more serious point in cases like these, which often goes unmentioned in press coverage, is that most of the rules in the CAP and BCAP codes can be traced back to a law which underpins them. In many cases, breaches of those rules are also breaches of the law.
In this case, failing to disclose a commercial relationship could be a breach of the Consumer Protection from Unfair Trading Regulations 2008 (CPUT), which explicitly prohibits the use of editorial space for a paid promotion without making that clearly identifiable by the consumer.
Being the law, as opposed to a self-regulatory code, the consequences of breaching the CPUT are potentially more serious. Breaches can be enforced through the civil courts, or as a criminal offence which can lead to fines and, in extreme cases, imprisonment.
Criminal prosecution is relatively unlikely for minor infractions such as this, but it’s something advertisers must be aware of when deciding how close a brand can sail to the wind. It’s also worth remembering that in cases like this, regulators will generally hold the brand and the influencer jointly responsible for any non-compliance.
In addition to not being properly identified, Ms Lucy’s Insta post also included the phrase “You can lose up to 7lbs in 7 days with Thermosyn”. As the ASA noted, the use of health claims which make reference to the rate or amount of weight loss is prohibited by EU law, namely the Regulation on Nutrition and Health Claims.
As well as being reflected in the CAP code, breaches of this Regulation can be enforced by Trading Standards authorities and lead to more substantive sanctions.
Fundamentally, brands and influencers need to work together, with appropriate agreements and guidelines in place, to ensure compliance and to avoid sanction, not least because the tide of public opinion can easily turn against them if they are perceived to be misleading consumers.
As the ASA makes clear in its recent report, ads must be clearly and prominently labelled as such and vague references to brand collaboration or practices like burying the label amongst a sea of hashtags, are not sufficient.
Something that makes the content obviously identifiable as an ad must be shown prominently, clearly and up-front, with #ad being the bare minimum in a social media context.
