An Influencer’s Guide to making clear that ads are ads

Legal, decent, honest and truthful Who are you? 1

Table of What are the rules? 2

What counts as an ad? 3 contents - Affiliate 4 - Advertorial 5

What counts as ‘payment’ for advertorial content? 6

What counts as ‘control’ for advertorial content? 7

What if there’s ‘payment’ but no ‘control’? 8

How do I make clear that ads are ads? 9

What are the CMA’s requirements? 11

What else do I need to remember? 12

Infographic: Is my post an ad and do I need to label it? 13

What happens when someone complains to the ASA? 14

Where can I get help? – CAP 16

Where can I get help? – CMA 17

Where can I get help – More 18

Legal, decent, honest and truthful Who The Standards The Competition and Authority (ASA) is the UK’s Markets Authority (CMA) advertising regulator. The ASA is the UK’s primary competition are you? makes sure ads across UK and consumer authority. We are media stick to the advertising an independent non-ministerial rules (the Ad Codes). government department with responsibility for carrying out investigations into mergers, markets and the regulated industries and enforcing competition and consumer law. The Committee of If we have concerns that a Advertising Practice (CAP), whose members represent market or business practice advertisers, media owners may be harming consumers and agencies, is responsible we can investigate and take for writing the Ad Codes. legal action to stop it.

Together, we work to make For more information on the ads responsible. We do this CMA see our homepage. by taking action against misleading, harmful or offensive advertising and providing advice and training to help businesses get their ads right.

1 Legal, decent, honest and truthful There are lots of rules that could apply, depending What are on the circumstances, but it’s worth paying particular attention to the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing the rules? (the CAP Code) and the Consumer Protection from Unfair Trading Regulations 2008 (CPRs).

The CAP Code, enforced by This makes ‘unfair commercial the ASA, applies to most forms practices’, including using of influencer marketing. Just ‘editorial content in the media to because an ad is covered by the promote a product where a Code, this doesn’t mean it’s a trader has paid for the promotion problem – it just needs to follow without making that clear in the rules. The Code is broken the content or by images or up into sections containing rules sounds clearly identifiable by the that relate to different subjects. consumer (advertorial)’ against Just because an ad is covered by the For example, Section 2 contains the law. Other practices which rules about how ads should may break the law are falsely CAP Code, this doesn’t mean it’s a be recognisable as ads, and claiming or giving the impression problem – it just needs to follow the rules. Section 3 sets out rules that that an individual is acting outside advertisers must follow of their business purposes or to avoid misleading people. falsely representing themselves as a consumer; failing to identify Consumer protection legislation, a commercial intent behind a enforced by the CMA, also post; and omitting applies to influencer marketing. or hiding ‘material’ information.

2 Legal, decent, honest and truthful What counts

There are a few different ways in which something as an ad? you post could count as ‘advertising’ and fall under the rules in the CAP Code, including:

Paid-for space Own advertising The most obvious way to If you’re posting about your make something an ad is own products/services; e.g., to pay for it to appear in products you sell and events ‘paid-for ad space’, which you’re running etc., then this means space that is normally also counts as advertising – used for ads, e.g. banner ads, even on your own personal paid-for search results and the channels. The same goes for ‘sponsored/promoted’ posts any draws or giveaways on social media platforms. you do (these are ‘promotional marketing’ and you would be the ‘promoter’).

3 Legal, decent, honest and truthful Affiliate marketing What counts When your content promotes Obviously, if all of the content particular products or services is about affiliate-linked and contains a hyperlink or products, the whole thing’s discount code that means an ad and you’ll need to make you get paid for every ‘click- clear upfront that the whole as an ad? through’ or sale that can be of the content is advertising. tracked back to your content, For affiliate ads, you are this counts as advertising. effectively acting as a secondary advertiser so you – Affiliate If there are affiliate links or need to make sure that your discount codes for only some content follows all of the of the products mentioned relevant rules, not just the in your content, and the rest ones on making clear that marketing you’ve mentioned in a purely it’s advertising. editorial capacity (i.e. there’s no affiliate link), then only the bits of the content that relate to affiliate-linked products are For affiliate ads, ads, rather than the post as a you are effectively whole. In that case, you only need to make clear that those acting as a secondary bits are advertising. advertiser so you need to make sure that your content follows all of the relevant rules...

4 Legal, decent, honest and truthful What counts as an ad? –

If you work with a to create some content Advertorial that you’ll be posting on your own channels, it’ll qualify as an ad if the brand:

1. ‘paid’ you in some way However, consumer protection (can be freebies, doesn’t legislation still applies where have to be money), and there has been ‘payment’ (i.e. any form of monetary payment, 2. had some form of editorial a loan of a product/service, any It’s not an ‘either/or’ – there has ‘control’ over the content, incentive and/or commission or including just final approval. to be both ‘payment’ and ‘control’ the product/service has been given free) but no ‘control’ and for this type of post to count as It’s not an ‘either/or’ – there this is enforced by the CMA. an ad under the CAP Code. has to be both ‘payment’ and ‘control’ for this type of post to count as an ad under the CAP Code.

5 Legal, decent, honest and truthful What counts as ‘payment’ for advertorial

Obviously, if you’re paid a specified amount of content? money to create and/or post a particular piece of content, this counts as ‘payment’.

But this isn’t the only type There’s nothing wrong with of arrangement that counts. getting paid to create content If you have any sort of and this alone doesn’t make ...products, gifts, services, trips, hotel commercial relationship with it an ad for the purposes of stays etc. for free, this is all likely to the brand, such as being the CAP Code; the brand also qualify as a ‘payment’ paid to be an ambassador, needs to have some sort of or you’re given products, gifts, control over the content. services, trips, hotel stays etc. for free, this is all likely to qualify as ‘a payment [or other reciprocal arrangement]’.

6 Legal, decent, honest and truthful Whether or not a brand has ‘control’ over an What influencer’s post will usually depend on the agreement you have with them. As a rule of thumb, if you weren’t completely free to do and counts as say whatever you wanted whenever you wanted, then there could have been some level of editorial ‘control’ for ‘control’ by the brand. The simplest way for a brand Requiring you to post a specific to ‘control’ the content is by number of times, on certain telling you what you have to dates or at particular times say, e.g. if there are particular could also count as ‘control’. advertorial words, phrases, themes or ‘key messages’ you need to If a brand reserves the right include, or you have to use to check/approve the content a particular hashtag. before it’s posted and/or to content? ask you to change it, this could This doesn’t just apply to text similarly count as ‘control’. or words – if the brand has They don’t need to actually specified what needs to be ask for changes – if they could, in an image, required you to and you would have to do it include a specific action in a (e.g. they could stop you from video or specified the type of posting), that’s enough. content you need to create (e.g. ‘unboxing’ the featured product), this is likely to count as ‘control’.

7 Legal, decent, honest and truthful What if there’s

If you’ve been ‘paid’ (either in money or in ‘payment’ gifts/freebies), but it isn’t as part of an affiliate arrangement and the brand doesn’t have any ‘control’ of what (or even if) you post, it’s unlikely but no that the content will count as advertising under the CAP Code.

In that case it’s a little like That said, arrangements like ‘control’? sponsorship, in the way that this are still subject to regulation events and TV programmes under consumer protection can be sponsored – the legislation enforced by the sponsor has no ‘control’ over Competition and Markets the actual content of what Authority (CMA). The CMA they’re sponsoring, they’re expects influencers to disclose just helping to fund its creation when they’ve received any form (and paying for an association of monetary payment, a loan of a Sponsorship isn’t covered by the with that content). product or service, any incentive CAP Code, and the ASA won’t and/or commission or have been Sponsorship isn’t covered given the product they’re posting pursue complaints about it. by the CAP Code, and the about for free. The CMA has ASA won’t pursue complaints published some more information about it. on this here and here.

8 Legal, decent, honest and truthful Under the CAP Code ads ‘must be obviously How do identifiable as such’. This means that consumers should be able to recognise that something is an ad, without having to click or otherwise interact I make it with it. Since it needs to be ‘obvious’, consumers shouldn’t have to work too hard to figure it out.

Most influencer marketing channels – provided it’s clear that clear that appears alongside independent/ you’re talking about your own editorial content in a very products – people are usually similar style, so it often isn’t able to recognise that you’re immediately obvious when advertising your own stuff. ads are ads? something is or isn’t an ad from the context alone. Affiliate marketing and advertorial content, on the other Both you (acting as a ‘publisher’) hand, are much less likely to be and the brand are responsible for clear recognisable by context ensuring that advertorial content alone, so this is where you may makes clear that it’s advertising. need to work a little harder to make it clear. There are Ultimately, if it’s not obvious from potentially loads of ways you the context that something’s an could make advertising content ad, more needs to be done with ‘stick out’ as being advertising, Advert the content to make this clear. but by far the easiest is to If you are promoting your own include a prominent label that products or services on your own makes this clear. AD

9 Legal, decent, honest and truthful

How do I make it clear At the moment we know that This is because the ASA has the ASA likes labels that just previously made clear that that ads are ads? say it how it is, e.g.: labels like this don’t tell the full story and don’t go quite • Ad far enough to make it obvious that it’s advertising. • Advert #AD • Advertising The main thing to remember is that you need to make it • Advertisement obvious – any label (or other means) you use to highlight the • Ad/Advertising/ The main thing to remember is that you ad needs to be upfront (before Advertisement Feature people click/engage), prominent need to make it obvious - any label (or other (so people notice it), appropriate Other labels are riskier, and for the channel (what can you means) you use to highlight the ad needs although it will always depend see and when?) and suitable for to be upfront (before people click/engage), on the wider content and all potential devices (it needs to context, we usually recommend prominent (so people notice it), appropriate be clear on mobile too!). staying away from: for the channel (what can you see and when?) and suitable for all potential devices • Sponsorship, Sponsored This means that burying the content, Spon, #Spon, #Sp label in a sea of hashtags or (it needs to be clear on mobile too!). putting it where it can only be • In association with seen by clicking ‘see more’ or clicking to view the full post, • Thanks to [brand] for making probably isn’t going to cut it. this possible We recommend including it ‘at • Just @ mentioning the brand the beginning’ – which might mean in the title, thumbnail or on an image (if that’s all people AD see at first).

10 Legal, decent, honest and truthful What are the CMA’s requirements? If it’s not an ad covered by the CAP Code but you were still ‘paid’ (in money or in kind), the consumer protection legislation enforced by the CMA still applies.

Consumers need to know the Although it’s not illegal for Feature’ or ‘Advertisement endorsement has been ‘paid for’. to pay people to Promotion’, and to have regard promote their products in to the ASA/CAP guidelines. If this isn’t clear, your post blogs, vlogs, tweets or other online articles – consumers Commercial relationships risks breaking the law. need to know the endorsement must be disclosed upfront, has been ‘paid for’. If this isn’t any views expressed by the clear, your post risks breaking influencer should be genuine the law. and everyone involved should ensure that there are robust The CMA expects brands, compliance processes in place influencers and media agencies that accurately reflect the to have made sure that the requirements of the law. content is clearly identifiable as being ‘paid-for’, for example The CMA has published some by prominently labelling posts/ more information on this here videos as ‘Advertisement and here.

11 Legal, decent, honest and truthful What else do I need to

Making it clear it’s an ad is only the beginning. remember? If you’re advertising your own products/services or engaged in affiliate marketing, then other rules are likely to apply to your content too.

Make sure you’ve got an idea of - promoting products subject generally what the rules cover, to lots of rules (like food or particularly if you are: supplements); or

- making claims (you’ll need - running your own ‘giveaways’ to back them up); and prize draws (seriously read Section 8). Make sure - advertising age-restricted you’ve got an products (like gambling But this is just a taster, the Code or alcohol); covers a lot more than that. idea of generally what the rules cover

12 Legal, decent, honest and truthful Is my post an ad and do I need to label it?

START Is the post advertising Y your own products, services or events?

N

Have you included a code or hyperlink as part of an ‘affiliate’ agreement, so you Y get paid a commission for each time someone clicks through and/or makes a purchase?

N

Are you receiving money for promoting N a product/service/brand in this post? Are you sure that it's clear from this post Y N alone - even to people who don't usually follow you and across all devices and platforms? Have you been told to say specific things Y about the product or Are you receiving to include specific benefits, freebies, Y information, including Y free products, hashtags or links? free visits, etc? N N

Y Does the brand have It's an ad under the Is it clear that it's an final approval before UK advertising rules! ad (whether 'affiliate' you post it or have they Y Is it immediately obvious or 'native'), rather It sounds unlikely reserved the right to that it's an ad, before than just sponsored the post will be people click on it? editorial content? considered an ad under tell you to change it? the Code, so you N N N Y probably don't need to label it.

Are you posting it because you've agreed to do it a specific number of times, either on one particular date Y or between a specific range of dates? You need to make it clear that the post N is an ad (rather than just editorial or sponsored content). There are various ways you could do this but the easiest is to include a label It’s likely to be that's always visible before people considered ‘sponsored’ click anything. The ASA has content rather than an ‘ad’ under decided that for now "ad" at the the CAP Code, so not for the ASA. beginning of the post does But CMA rules apply here – you the job best. must make sure content is clearly identifiable as being paid-for. For example, by using the label ‘advertisement feature’ or ‘advertisement promotion’. Is all of the content about NICE the affiliate Y ONE! product(s)? N

Just the links and sections of the content that relate to affiliate products are advertising for our purposes and you need to highlight this, e.g. with a clear 'ad' label before /next to the relevant content.

www.cap.org.uk

13 Legal, decent, honest and truthful What happens when someone Every complaint the ASA receives is assessed against the Ad Codes. Many don’t raise any issues complains or give the ASA a reason to contact you or to investigate further, and in those cases they just dismiss the complaint. If they need more information to the ASA? in order to work out whether there’s a problem, someone will get in touch with you and the brand.

Looking into a complaint across as a bit formal and In the early stages, they’re scary, but they don’t mean usually just asking questions to to be - they’re regulators, it’s try and work out if they need to just how they communicate. take further action. There’s no They’re always happy to need to be worried, just tell them talk to you if you’re unsure what they need to know and if or concerned – we promise you’ve made a mistake just hold they’re all nice, friendly people your hands up and say so. We just doing their best to keep know they can sometimes come UK advertising responsible.

14 Legal, decent, honest and truthful

What happens when Resolving things informally Investigating an ad If there seems to be a problem, If they have good reason to someone complains the ASA usually prefer to work conduct a formal investigation together with you (and the you (and the brand) will have to the ASA? brand) to resolve it, by providing a chance to respond to the advice and guidance or getting complaint and they’ll keep you (and the brand) to agree you involved throughout the in writing that an ad will be process. When they’ve made changed or removed. When they an assessment, the ASA do that, the case ends up on a Council (the independent jury list published every Wednesday responsible for deciding if on the ASA website so they can the rules have been broken) be transparent about the work will need to make the final they’re doing. They don’t include decision. These decisions much information and you can become rulings, which are also see the list here. published every Wednesday – you can see them here.

What happens after a ruling? If there was a problem with ... the ASA usually your content, you’ll need to prefer to work together change or remove it (the same goes for any similar content). with you (and the brand) If you don’t, you’ll no doubt to resolve it so, where be hearing from the ASA again and, if that doesn’t work, CAP’s appropriate, they Compliance team will get in will try and resolve touch. The Compliance team can apply sanctions if they issues informally. need to (but they’d prefer it if they didn’t need to!).

15 Legal, decent, honest and truthful Online Guidance Newsletter Where can There’s loads of free advice Fancy receiving topical tips on our website. Why not and guidance updates direct try searching our Advice to your inbox? Go ahead Online database? We’ve got and sign up to our Insight guidance on various topics e-Newsletter. I get help? – from alcohol to weight loss claims and everything – CAP in between. Tailored Advice Want to ask a question or sense-check your idea or Online & Face-to-face content before you post it? Training Contact our Copy Advice We offerAdvice:am seminars team, either on 020 7492 and eLearning modules on a 2100 or through the website. wide range of topics, including It’s free and usually takes social media. Keep an eye out 24 hours. for our webinars too!

You can also follow us (@CAP_UK) on Twitter for the latest news and guidance updates.

16 Legal, decent, honest and truthful Where can Here are some more useful resources on this topic: I get help?

– CMA For more advice and information from the CMA, see the resources below;

Online reviews ICPEN Guidelines and endorsements: for Digital Influencers information for Guidelines from the businesses International Consumer Information and advice for Protection Enforcement businesses on how to comply Network (ICPEN) on online with consumer protection reviews and endorsements. law in the online reviews ... guidance and endorsements sectors.

on being open Online endorsements: and honest being open and honest with your audience when endorsing CMA guidance on being open products/services and honest when endorsing online. products/services online.

17 Legal, decent, honest and truthful Where can

The Internet Advertising The Incorporated Society I get help? Bureau (IAB) UK, the of British Advertisers trade association for digital (ISBA), the organisation advertising representing that represents major brands, media owners, brands, has created a set – More technology providers and of template contractual agencies has created Good terms for the industry Practice Guidelines and that influencers and an infographic to help you brands alike can use to work out when and how ensure proper commercial to disclose content-based relationships including and ; clauses that address labelling of content; Content & Native Disclosure Good Practice Influencer Resources ‘Do I Need to Disclose?’ Infographic

18 Legal, decent, honest and truthful