Maybe you’ve already got your head around this and I’m slow on the uptake, but I’ve spent some time this week reviewing and digesting the new ASA influencer’s guide and information about the CMA and CAP and thought it would be useful to break some of it down for anyone struggling with the rules.
I’ve explained everything in full so that you can fully understand the point behind all of this, but there’s also a summary at the bottom if you just want to skip to the basics of the rules and how they apply to you when posting collaborative content.
Who are the ASA, CAP and CMA?
ASA – The Advertising Standards Agency. They ensure ads in the UK stick to the advertising rules. The rules are called the “Ad Codes”.
CAP – Committee of Advertising Practice. They write the Ad Codes. They take action against misleading or harmful advertising.
CMA – Competition and Markets Authority. They are an independent, non-ministerial agency who enforce competition and consumer law; including investigating markets or business practices that might harm consumers and taking legal action to stop it.
For the purposes of this post, if you’re anyone who posts any kind of “collaborative” content, I’ve used the blanket term influencer, to keep it as simple as possible.
Who enforces what?
The Ad Code is enforced by the ASA and applies to most influencer marketing.
If you are advertising you are under the powers of the ASA and CAP.
If you are creating content because of a collaboration, but it isn’t advertising you’re under the powers of the CMA.
What is ADVERTISING?
The following types of content are likely to be considered advertising (and therefore fall under ASA/CAP):
- Paid for space – you receive payment (defined below) for something like a banner ad, paid for search result and sponsored or promoted posts on social media.
- Own advertising – you are posting online about your own products – this includes events you are running and giveaways or promotions (NB. in a giveaway you are classed as a promoter, regardless of who provided the prize).
- Affiliate Marketing – if you include a link which might generate income for a click through or sale.
What actually makes it an ad?
Two factors are really important here, and this is where we see a split between who’s powers your content will fall under.
Your content will qualify as an ad if the brand has:
- Paid you in some way.
- Has some control over the content.
Payment is any sort of commercial relationship including: being paid to be an ambassador,being given products, freebies, gifts, hotel stays, free meals, etc. All of it counts.
Control is being told what to say or do, by the brand. This includes: being asked to use specific wording, hash tags, specific photography, asking for a review post, specific actions (i.e. unboxing) in a video, posting at certain times or a certain number of times and the ability to see or approve the content before you post it.
What’s really key here is that if BOTH payment and control are present, the influencer’s guide says that IT IS AN ADVERT and you’re under the powers of the ASA and CAP.
If only one of the above are present, for example, being sent a press sample or a free hotel stay or products, it is not classified as advertising and you are therefore under the CMA.
How should I disclose an AD?
The rules here are pretty unequivocal.
Your disclosure must be OBVIOUS. The ASA like labels such as: AD, advert, advertising, advertisement. They recommend you avoid using sponsored, spon, in association with, “thanks to [brand] for making this possible”, etc.
As well as clear wording, your disclosure must be UPFRONT. This means, at the front of your post, before the reader has to click on anything or scroll any further down. This means not burying it in hashtags, and not putting it at the end of your caption. This bit is really important.
The influencer’s guide states that, if someone has to click ‘read more’ before they know they’re looking at an ad, you’re doing it wrong.
Think of it this way – if someone is scrolling through your feed and cant be bothered to read your full caption, how are they going to know its an ad? Its your responsibility to make it prominent and abundantly clear.
What if its not an Ad and what if it falls under the CMA?
This is where, I think, a lot of people got confused after the influencer’s guide was published.
The CMA are a separate entity. However, even if the content isn’t classified as advertising, the CMA still require, under consumer protection laws (yes in bold, actual LAW), that commercial relationships must be disclosed upfront and the CMA:
“expects influencers to disclose when they’ve received any form of monetary payment, a loan of product or service, any incentive and/or commission or have been given the product you’re posting about for free”
If this isn’t clear, your post risks breaking the law.
Although there is a distinction between the ASA and CMA, even if there isn’t both payment and control you must still declare the relationship. Consumers must be told that the endorsement has been paid for. As above, payment doesn’t necessarily mean cold hard cash.
Clear as mud? Thought so.
What this part means, in real life, is that even if the brand simply sends you some free clothes and doesn’t ask you to post about it or review them, if you then decide to do a social media or blog post about it of your own accord it still requires disclosure, on the grounds that:
“.. consumer protection law does not allow for the use of editorial content in the media to promote a product where a trader has paid for the promotion, unless this has been made clear to the consumer”.
What isn’t particularly clear from the separate CMA guidance is how exactly to do that. Whereas the ASA are pretty clear, the CMA just want you to be transparent. Probably the safest way to do this and to ensure compliance is to use wording such as AD – GIFTED, or GIFTED, which a lot of influencers have already started to adopt. The point here is making it obvious to everyone, even those not familiar with how influencer marketing works, that you didn’t pay for that item yourself.
Get to the good bit – the simple summary
In as simple a wording as I possibly can:
UPFRONT disclosure of any type of brand relationship is key, otherwise you are at risk of having mislead consumers and the public.
Your content must be labelled as an advert (in clear terms) if you have received any form of payment (including freebies) as part of any sort of collaboration (with payment and control).
If the brand has absolutely no control over what you post and when and has simply decided to send you free stuff with no obligation then you must still declare this and the safest way to do so is something like AD-GIFTED, GIFTED, or very clear wording about how the post came about.
If you are promoting your own event, giveaway, products, or services, according to the influencer’s guide, this is STILL AN AD.
The last bit
The thing is with all of this, is that you need to put yourself in the shoes of the person reading or viewing your post. As an influencer, you have a duty to think about whether you would feel duped or mislead yourself to find out, after you had followed someone’s recommendation and spent your own money, that they only posted about it because they were paid or obliged to do so.
None of these agencies are likely (don’t quote me on this) to fine or prosecute you if you make a small, silly mistake – we’re all human at the end of the day. But do it consistently, and they may take a different view.
Finally, the overriding thing I’ve found in reading through the influencer’s guide all and other online guidance (and there’s a lot) is that all these agencies would much rather work with influencers to make sure the rules are being adhered to – don’t be afraid to ask for guidance from them – they’re the experts, after all! Be honest, clear and open and things will be just fine!
Hope you found that useful! If you fancy reading the guide yourself, you can find it here.