Is your content an ad? Updated guidance for influencers on #ad labels

The Committee of Advertising Practice ("CAP") has updated its influencer guide on "making clear that ads are ads". This is the third update since the guide was first published in 2018.

Influencers must make clear that marketing content they publish is an ad. This is to avoid misleading people who may not realise the content has commercial intent. Whenever an influencer receives payment, an incentive, or they are personally or commercially connected to a brand, and then they post about that brand, they need to make clear that the content is advertising. The best way to do this is to include a clear and prominent "Ad" label upfront.

Whilst the updated guide is aimed at influencers, it states that it is "also useful for brands and agencies". Guidance written specifically for businesses and brands was published by the Competition and Markets Authority (CMA) in November 2022 called "Business responsibility and social media endorsements".

CAP has also published an interactive "self-help" tool to help influencers decide whether content needs to be disclosed as advertising or not.

The influencer guide has been updated as follows:

• Who the guidance is for: There is a clearer introduction about who the guide is for and why.

There is a clearer introduction about who the guide is for and why. The ASA states the concept of an influencer includes: "any human, animal or virtually produced persona that is active on any online social media platform". There is also more emphasis on both brands and influencers being responsible together for influencer content, both throughout the relationship and for relevant content for a period of 12 months afterwards.

• More clarity that business relationships count too, not just payments or incentives:

It makes clearer that disclosure is required not only when a payment or other incentive is received, but also if the influencer is "personally or commercially connected to the brand" e.g. an owner, employee, shareholder, director of a brand or has any other commercial or personal interest (i.e. family or friends), this applies even when the brand doesn't know if or what the influencer is creating. More examples have been added of what counts as a "payment" or "relationship" including collaborating on an edit or collection, receiving an exclusive discount or a commission, receiving free event invites, loans, leases, rentals or shares (whether requested or unsolicited).

• More guidance on being paid for "clickthrough's":

Where influencer content contains or directs people to a link or discount code where the influencer gets paid for "clickthrough's" or sales, the updated guide says that it's not sufficient to include a general disclaimer indicating that "some" links "might" earn the influencer a commission. Instead the influencer must specifically highlight which parts of the content are advertising.

• Further advice on how the disclosure is presented:

The updated guide says the "Ad" label needs to be upfront even when advertising your own products or services on your own channels. You cannot rely on the audience checking your bio or other content and the disclosure must not be buried in other hashtags, poorly contrasted with the content background, or separate from the content. If the ad appears across multiple stories or formats (e.g. posts/reels/stories), each one needs to be labelled.  It also states that the disclosure must not be delayed e.g. part-way through a blog article or YouTube video.

• Clearer rules on what the disclosure should say:

The guidance previously listed some labels to "stay away from" but it now "advises against using" these, including "Supported by/Funded by", "In association with/In partnership with",  "Sponsorship/Sponsored/Spon/Sp" "Affiliate/Aff/Af/Afflink/Collab" and "Gift/Gifted". There is also additional wording about the Instagram "Paid partnership" tool stating that this may be sufficient if the label is upfront, clear and prominent when it’s added to content.

• New guidance on the consequences of non-disclosure:

There is a new page about "What happens if I don't disclose" setting out the consequences. This includes (a) an influencer's details may be added to the ASA's non-compliance social media influencer page for up to three months and the ASA may also run "On-Platform Targeted Ads" alerting the influencer's followers to non-compliance; (b) brands can also be added to a "non-compliant online advertiser's page"; (c) the social media platform itself may also take action; (d) formal enforcement action may be taken by the Competitions and Markets Authority (which enforces the consumer law) or Trading Standards Services.

• Updated wording on other rules to think about:

The guide also sets out other rules to think about besides advertising disclosures and new wording has been added to this page reminding influencers that advertising to children needs enhanced disclosure and particular care needs to be taken with the content (e.g. don't directly ask them to buy anything).