New Rules for Influencers from the Advertising Standards Authority

The advertising landscape changes quickly; those in the industry are constantly looking for novel and captivating ways to reach their desired audiences. This has led to an influx of brands working with influencers to promote various products and services.

The Advertising Standards Authority (ASA) is the UK’s advertising regulator and has recently published new guidance targeted at social influencers. This guidance seeks to clarify what the relevant rules governing influencers are, and how they can avoid falling foul of the rules and potentially incurring a penalty. The circumstances surrounding the content will dictate which rules apply, and which body will enforce the rules.

The CAP Code (see below) will apply to influencers if both of the following criteria are true:

1. The brand paid for the promotion; and
2. The brand had some form of editorial control over the content of the promotion.

Payment:

This includes obvious forms of monetary payment, however it also includes other forms of remuneration. If the influencer is paid to be a brand ambassador, received products, gifts, services, trips, hotel stays etc for free, then this will most likely also constitute payment for the purposes of these rules.

Control:

Clearly, if a brand dictates the words, themes or key messages of the influencer’s content (for example, using a particular hashtag), this will qualify as control. Perhaps less obvious though: if the brand reserves the right to have final sign-off on the content and could ask you to alter it, this can count as control too.

The Rules:

The CAP Code[1] applies to adverts if both conditions above are met. Under these rules, the advert ‘must be obviously identifiable as such’. Where the context alone is not sufficient, an influencer should ensure that the content is clearly labelled so that it is immediately obvious to the consumer that they are looking at an advert.

If there has been payment, but no control, then the promotion is effectively deemed a form of sponsorship. In this case, the CPRs[2] apply, regulated by the Competition and Markets Authority (CMA). The CMA requires that the content must be clearly identifiable as having been ‘paid for’.

If you think you may be affected by these rules and would like to enquire about advice for you or your business, please contact Simon Porter on 01252 730754 or email simon.porter@baker-law.co.uk.

This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.