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The following key pieces of legislation and regulations apply to influencer marketing:
- The Consumer Protection from Unfair Trading Regulations 2008 (“CPUT”), which is enforced by the Competition and Markets Authority (“CMA”); and
- The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the “CAP Code”), which is enforced by the Advertising Standards Authority (“ASA”).
In September 2018, the ASA published guidelines addressed to influencers regarding how CPUT and the CAP Code apply to influencer marketing.
For the purposes of the CAP Code, if an influencer works with a brand to create content to post on his or her own social media channels, the content will qualify as an advertisement if the brand:
- paid the influencer in some way (this can be a free product or sample and does not have to be money. It could even be the provision of services, trips, hotel stays or being paid to be an ambassador); and
- had some form of editorial control over the content. The threshold as to what constitutes control, however, is very low.
If the above two requirements apply, the influencer’s post will constitute an advertisement for the purposes of the CAP Code and the CAP Code requires that advertisements “must be obviously identifiable as such”. This means that people reading the post should be able to recognise that something is an advertisement, without having to click or otherwise interact with it.
The easiest way to make an advertisement obviously identifiable as such is to include a prominent label that makes clear the post is an advertisement. According to the guidelines, labels such as “Ad”, “Advert”, “Advertising” and “Advertisement” are preferred by the ASA. On the other hand, the guidelines recommend staying away from words such as “sponsored” (and other such variations like “#Spon”), “in association with…” and “thanks to [brand] for making this possible” because, as the ASA has previously made clear, these types of labels do not “tell the full story” and do not go far enough to make it obvious that it is advertising.
A breach of the CAP Code may result in the ASA requesting that infringing content is removed and it may publish breaches on its website.
In addition to the CAP Code, the CPUT prohibits certain commercial practices that are considered to be “unfair” including:
- “using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer”; and
- “falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer”.
Therefore, where the influencer is being paid (either in money or money’s worth), incentivised or rewarded by a brand, he or she should be making appropriate disclosures in any posted content – even if there is no control over the post.
The CMA’s own guidelines on social media endorsements, published on 23 January 2019, also emphasise the importance of not being misleading to consumers.
The CMA’s guidelines also warn against certain disclosures which it considers “do not go far enough to comply with the legal requirements”.
Content on social media which is in breach of CPUT risks enforcement action being taken by the CMA against the brand or the influencer. A brand or influencer may be ordered by the court to take down the infringing post. In addition, certain commercial practices deemed unfair by the CPUT constitute a criminal offence which could lead to:
- fines; and/or
- imprisonment for up to 2 years; or
You can download the ASA’s influencer guidelines (“An Influencer’s Guide to making clear that advertisements are advertisements”) from its website: https://www.asa.org.uk/resource/influencers-guide.html.
Link to the CMA’s Guidance: Social media endorsements: being transparent with your followers: