Background
Earlier this year, we commented on a report published by the ASA on influencer ad disclosure on social media following a monitoring spot check to assess whether advertising content was being properly disclosed. The ASA’s report identified ‘unacceptable’ levels of non-compliance, and found that only 35 per cent of the posts reviewed were clearly labelled as ads and obviously identifiable as such. In the wake of these findings, the ASA warned that it would continue to monitor in this space and any future non-compliance would be subject to enforcement action.
The report followed a series of efforts over the years by the ASA to provide guidance specifically for influencers and brands to help them comply with the rules relating to the disclosure of advertising content, including the CAP Code and consumer protection regulations. Despite this, and the earlier warning issued by the ASA, there continues to be a significant number of rulings against influencers and the brands partnered with those influencers.
Last week, the ASA upheld yet more complaints made against two influencers, Emma Louise Connolly and Briley Powell for breaches of the CAP Code. One concerned a failure to make clear that certain Instagram posts were ads and the other concerned a failure to award prizes promised in a social media draw. We expand on the rulings in further detail below.
The complaints
The ads in question from Emma Louise Connolly concerned the following posts made on Instagram in June 2021: (a) an image of Ms Connolly in a blue swimsuit with the caption 'The @calzedonia blues! #CalzedoniaAmbassador'; (b) an Instagram story which showed Ms Connolly in a swimsuit with superimposed text in small white writing on a light grey background which said '@calzedonia AD'; (c) an image of Ms Connolly wearing a necklace with the caption '@bulgari. Honestly, what an honour to be part of the new #BvlgariMagnifica campaign. Nothing but love for the magnificent team behind it … #Bvlgari #BvlgariHighJewelry'; and (d) an image of Ms Connolly eating spaghetti with the caption 'sippin [(sic)] on some @bolfoods posh noods swipe for our full new #powerFULL range of plant based goodness that all taste SO good'.
Two complaints were made to the ASA which challenged whether these posts were obviously identifiable as ads and therefore in breach of the CAP Code rules 2.1 and 2.3 (Recognition of marketing communications), and whether the post on BOL Foods had made clear its commercial intent.
The ad in question from Briley Powell concerned a prize draw offered by Ms Powell which read 'WIN £250 TO SPEND ON PRETTY LITTLE THING + THIS BUNDLE Give away includes £250 PLT Voucher Filter by Molly-Mae FULL tanning kit Beauty Works Professional Styler The White Company Seychelles Set OPEN INTERNATIONALLY TO WIN: Like this post Tag your bestie Share to your story (tag me) Both must be following @brileypowell Unlimited entries! The more you enter = the more chances of winning Winner announced on VALENTINE’S DAY (A MONTH TODAY) I had planned this giveaway to celebrate reaching 25K which seems a lifetime away so thought why not treat a lucky lady (or lad?!) for vday instead! GOOD LUCK ALLLL'.
A complaint was made to the ASA on the basis that the complainant had been notified that they had won the prize draw but had not received the prizes, and was therefore in breach of the CAP Code rules 8.1, 8.2 (Promotional Marketing) and 8.27 (Prize promotions). The CAP Code provides that promoters are required to award prizes described in their marketing communications, normally within 30 days, and withholding prizes was only justified if participants had not met the qualifying criteria clearly set out in the rules of the promotion.
ASA’s rulings
The ASA upheld the complaints against Emma Louise Connolly and concluded that the ads were not obviously identifiable as marketing communications. In relation to Calzedonia, the ASA acknowledged that the posts in question were not directly paid for, but noted that the post featured the hastag '#CalzedoniaAmbassador'. Because this was linked to Ms Connolly’s ambassador agreement with Calzedonia, the ASA considered this to be an ad for the purposes of the CAP Code and should therefore be obviously identifiable as such (e.g. by marking it as an 'ad'). The ASA noted that the Instagram story for Calzedonia did feature the label 'AD', however, this was deemed to be 'unclear and lacking in prominence' because it appeared in small white writing on a light grey background.
The post for Bvlgari featured no label such as 'ad' to make it clear that it was a paid marketing communication. It is therefore unsurprising that the ASA found that this post was in breach of the CAP Code. In relation to BOL Foods, Ms Connolly was an investor in the company, and the post for BOL Foods made no reference to this commercial relationship, and nor did it feature any 'ad' label to identify it to consumers as a marketing communication. The ASA considered that although some of Ms Connolly’s followers might have known that she was an investor in BOL Foods, it was not immediately clear from the post itself that she had a commercial interest in BOL Foods.
The ASA also upheld the complaint against Briley Powell and concluded that withholding the prizes offered in the prize draw breached the CAP Code: Ms Powell maintained that all items except for the £250 voucher had been posted to the winner, but she subsequently decided to withhold the voucher because the winner had not been following @brileypowell, which was a condition of entry into the prize draw.
The ASA noted that the ad did not specify a date by which the prizes would be awarded, and this should have been awarded within 30 days as provided for in the CAP Code. The ASA acknowledged Ms Powell’s claim that she had posted three of the four prizes, but considered that it was Ms Powell’s responsibility to ensure that she had robust procedures in place to evidence that the prizes had been sent. In relation to withholding the voucher, the ASA did not consider Ms Powell’s claim that the winner had not complied with the entry requirements to be justified. The ASA queried why the entry was selected as the prize winner if they had not complied with the entry requirements at the time of selection. The ASA also noted that the prize winner could have been following @brileypowell at the time of the prize draw entry but then subsequently unfollowed her following the prize draw.
Key takeaways
It is clear that influencers continue to be under the microscope of the ASA for disregarding the ad rules. To date, the focus has tended to be on disclosure requirements and ensuring that influencers make clear when an ad is an ad. These latest ASA rulings serve as a useful reminder to influencers and brands that their compliance responsibilities go further than the label #ad, and that advertising must comply with the broader requirements of the CAP Code when operating on social media, including when running prize draws or competitions.
Using the label #AD may not always be adequate, if the label is not clearly and prominently displayed (as was the case in the above ruling on the Instagram story for Calzedonia). The ASA suggested that the label would have been significantly more prominent if it had been written in a colour, or had been placed inside a box, that contrasted with the background.
It is also clear from the rulings that brands are jointly responsible for ensuring that promotional activity carried out by influencers are compliant with the CAP Code. As a starting point, there should be a written contract in place with your influencers which includes an obligation to properly label posts as 'ads'. It is worth noting that the Calzedonia ambassador agreement did provide that all posts had to be labelled as advertising and pre-approved by Calzedonia. This highlights that brands may need to take further steps to ensure compliance with the ad rules, for example, by proactively monitoring posts and providing practical guidance where possible.
Non-compliance resulting in ASA action carries the risk of negative publicity, reputational damage and sanctions. There are also possible criminal penalties for breaches of applicable consumer protection laws (enforced by the CMA), making it imperative that brands’ arrangements with influencers are properly managed.
How can Burges Salmon help?
For further information about what we have discussed in this article, please contact Helen Scott-Lawler or Amanda Leiu.
This article is part of a series which addresses the key issues and considerations for brands when advertising, which we are releasing following the ASA’s release of a five-year strategy which includes a new focus on reinforcing regulations around online advertising.