Who: Committee of Advertising Practice (CAP) and the Competition and Markets Authority (CMA)
Where: United Kingdom
When: 6 February 2020
Law stated as at: 12 March 2020
What happened:
CAP and CMA jointly published an updated version of the ever-useful guidance “Influencers’ guide to making clear that ads are ads”.
A raft of updates to supporting CAP guidance were also issued, including:
- the logician’s favourite “Influences’ Flowchart – Is my post an ad and do I need to label it?“;
- the millennial-friendly “Infographic: Influencer’s Cheat Sheet” and;
- the particularly useful “Infographic: Affiliate Marketing“.
In respect of potential affiliate marketers, the guidance clarifies that to be affiliate marketing, the promotional content must contain links, discount codes or similar which trigger payment to the affiliate when used by a consumer. This means that marketers could include not only those who use obvious advertising to promote third party products but may also include social media influencers. The update also confirms that such marketing is always within the ASA’s remit.
The updated guidance also clarifies the scope of the CMA’s and ASA enforcement powers in the context of paid-for content and when the question of editorial control arises. The guidance maintains broad interpretations of both “payment” and “editorial control”. It clarifies that the CMA can take action in relation to influencer advertising for which payment is received. The ASA can also step in both as concerns payment or when the brand has exercised editorial control over content.
The guidance confirms the ASA’s advice that when publishing such content, as an absolute minimum, influencers and affiliates should include a prominent label, such as “Ad”, to flag advertising content. The means used to alert consumers to advertising must be:
- Upfront, before people click or engage (engagement could include curser hovering);
- Prominent, in other words noticeable;
- Appropriate for the channel (consider what consumers can see and when); and
- Suitable for all potential devices, including mobile phones and apps.
Where editorial control of a brand is accepted by an affiliate or influencer the affiliate can still be held responsible for compliance of the ad with the CAP code.
Why this matters:
Clarity for those publishing such content is always welcome. Many individuals working in this space are less aware than the brands they collaborate with of the rules which apply and risks they are exposed to when posting advertising content.
