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ASA Goes ‘Ad for Ad’ Against Non-Compliant Influencers

Brands and agencies are responsible for ensuring that influencer behaviour on social media complies with ad disclosure rule. The Advertising Standards Authority (ASA) has introduced a novel approach to sanctioning influencers who consistently fail to disclose ads on their Instagram accounts. Earlier this month, the ASA announced that it will take out ads of its own against six influencers, who despite previous warnings, have repeatedly failed to improve their ad disclosures in line with advertising rules. The ASA’s ads will alert consumers to the influencers’ failure to properly disclose their ads and will be targeted at the very same audiences that the social media personalities seek to influence.

The ASA has been paying close attention to influencers’ ad disclosures for some time now. As we previously noted, the ASA published its influencer monitoring report in March last year. The report found that only 35% of UK ads masquerading as genuine social media posts were clearly labelled and identifiable as sponsored content / paid for ads. The ASA has subsequently created a ‘name and shame’ webpage listing non-compliant influencers. Those listed have repeatedly failed to clearly disclose ads on their social media posts and have failed to provide or uphold assurances that they would become compliant. Named influencers remain on the webpage for three months and are subject to enhanced monitoring spot-checks.

The ASA’s CAP Code is clear that marketing communications must be obviously identifiable as such. This is often achieved by prominently including the label ‘#ad’ in social media posts. The regulator does not like use of “#spon” or “#affiliate”. The ASA’s new targeted ads mark an escalation in sanctions against non-compliant influencers. Further sanctions are also being considered by the ASA, including referral to statutory enforcement bodies such as trading standards or the Competition and Markets Authority or collaboration with platforms to remove non-compliant influencers’ content.

As we recently reported, the crackdown on misleading influencer practices is a global trend. In the US the Federal Trade Commission is taking action against big names regarding fake reviews and failures to disclose endorsements. The regulator is threatening to impose financial penalties and is being generally more active in the Biden administration.

Now is the time for brands and agencies to review influencer contracts, policies and advertising practices in the UK, EU and US with urgency. Failure to comply is potentially serious, resulting not just in brand damage and banned ads, but criminal prosecution and fines are now very much in play.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 33
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About this Author

Carlton Daniel Intellectual Property Attorney Squire Patton Boggs London, UK
Partner

Carlton Daniel advises on intellectual property rights, commercial contracts and consumer regulatory law. He handles both contentious and non-contentious matters.

Carlton has a particular focus on providing advice to clients in the advertising, marketing and media sectors, and also to businesses operating in the food and drink, retail, automotive and tech sectors.

Intellectual property rights: Carlton has significant experience advising on the exploitation and protection of trade marks, designs, copyright, databases, confidential information and patents. As...

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