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Influencing Change: ASA Names and Shames Influencers 

by Shoosmiths LLP

Published: June, 2021

Submission: July, 2021

 



The ASA has taken further steps in their battle against influencers that fail to disclose when they are advertising to consumers on their social media channels.


The ASA has taken further steps in their battle against influencers that fail to disclose when they are advertising to consumers on their social media channels. On 18 June 2021, the ASA published the names of four influencers that, despite being put on notice by the ASA regarding potential further sanctions if they failed to comply with advertising rules, have persisted in failing to disclose the true advertorial nature of their Instagram posts.


The issue


The ASA published an ‘Influencer Monitoring Report’ back in March 2021 (the “Report”), which displayed the findings of an extensive social media ad monitoring exercise. Given the volume of content found to be non-compliant with the CAP Code, the ASA included a number of recommendations and steps that influencers, and the brands whose products were being endorsed, could follow to ensure the Instagram posts in question were clearly visible as ads, and were not misleading to consumers.    


Our previous article detailing the key takeaways of the Report can be found here.


Despite the ASA putting those associated brands and influencers on notice that future spot checks would be carried out, which may lead to further enforcement action, it appears the ASA have been forced to take further steps to try and prompt compliance with the CAP Code.


“Named and shamed”


A dedicated ‘non-compliant social media influencers’ ASA webpage (available here) has now been introduced by the regulator to name and shame the social media influencers who, according to the webpage, ‘are in breach of the CAP Code for routinely failing to clearly disclose when they are advertising to consumers on their social media channels’.  After either failing to provide assurances to the ASA that future posts would include clear and upfront labelling, or reneging on those assurances, four influencers (Chloe Ferry, Chloe Khan, Jodie Marsh and Lucy Mecklenburgh) have been added to the dedicated list of ‘non-compliant’ influencers and will now be subject to a period of enhanced monitoring spot checks.  


The named influencers will be on the webpage for a period of three months, and other influencers who break the rules in a similar context will be added over time.


The ASA have also confirmed they will be looking to act against brands that repeatedly fail to disclose ads or do not provide the relevant assurances that ads will be properly labelled from now on.


What further sanctions are available to the ASA?


In addition to the bad publicity synonymous with negative ASA rulings and an appearance on the dedicated ASA non-compliance webpage, the ASA has a number of options available to try and deter non-compliant behaviour, should they wish to further sanction social media influencers and the associated brands.


Sanctions available to the regulator against brands are:


  • Ability to issue ‘Ad Alerts’ advising of non-compliance to its members, including the media, advising them to withhold services such as access to advertising space;
  • The withdrawal of certain trading privileges;
  • A requirement to have marketing material pre-vetted;
  • Arranging for internet search websites to remove a marketer’s paid-for search advertisements; and / or
  • Arranging for the ASA’s webpage to appear in search engine results when the business / individual is searched in a general context.

 


Perhaps of more concern to brands with influencers that continue to flout the rules, is the ASA’s ability to refer cases to Trading Standards (acting as the ASA’s legal backstop), who have the ability to investigate and, in serious cases, prosecute offenders. 


Trading Standards have the ability, under consumer protection legislation, including the Consumer Protection from Unfair Trading Regulations 2008 (“CPRs”), to investigate and take legal action to stop market or business practices that may be harming consumers.  The CPRs make it a criminal offence to use unfair commercial practices that mislead consumers.  Consistently failing to identify commercial intent behind a social media post is likely to be considered a breach of the CPRs and could, in serious cases, for example where the offence continues despite requests from the regulator, attract a substantial fine for both the brand and/or the influencer. 


How can brands ensure compliance?


  • Be careful with their contract drafting (e.g. regarding hashtag obligations and disclosure requirements on posts) and have a robust approval process and proper, active monitoring;
  • Keep an audit trail of evidence to rectify mistakes by influencers and, if necessary, enforce your contractual rights if the breaches persist;
  • Ensure that marketing communications are identified as such by displaying #ad or ‘ad’ in a prominent, front of centre position on social media posts, regardless of whether there is a contractual arrangement in place to advertise a product, or whether the arrangement is more akin to that of an affiliate relationship;
  • Avoid using labels such as ‘supported/funded by’, ‘in association with’, ‘thanks to [ ], ‘sponsorship’, #aff/affiliate and #sp/sponsor’;
  • Brands should monitor their influencer’s social media activity to ensure labelling is prominent across all formats, rather than buried in a sea of hashtags, and should ensure labelling is included on posts in which it is not explicitly clear, when viewed in isolation, that the brands being discussed are brands in which the individual posting has a financial interest;
  • Brands should take steps as appropriate to correct any social media posts that do not comply;
  • Use tools that help to distinguish advertorial content; and,
  • Seek legal advice from a marketing specialist.

 



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