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Incompetent #ad Disclosure – the ASA Issues Warning to Influencers

The ASA has issued a stark warning to advertisers: non-compliance with ASA rules on disclosures in advertising is rife and that is unacceptable. The regulator now plans to get tough with those in breach.

We blog regularly on Advertising Standards Authority (ASA) scrutiny of advertising rules in the social media landscape. The ASA has now released a social media compliance report following its analysis of over 24,000 social media posts by over 100 UK-based influencers. The ASA looked specifically at compliance with ad disclosure rules in social media.

The ASA’s CAP Code and UK and EU consumer law require marketing communications that are promotional to be clearly labelled as ads. The disclosure is required so that consumers know what is promotional and what is genuine unbiased opinion. The ASA recommends that influencers use #ad in social media posts to communicate that message to consumers clearly. However, the ASA analysis unveiled low levels of compliance: only 35% of posts were correctly labelled and obviously identifiable as advertising.

Key Issues Identified by ASA’s Report:

  1. Inconsistent disclosure across social media posts – when a piece of ad content spans a number of consecutive social media posts, unless it is absolutely clear that this is part of the same posting, each individual post must be disclosed separately as an ad.
  2. Visibility of ad labels – where social media posts were labelled as ads, labels were often in a small font, obscured by platform architecture, in a similar colour to the background or otherwise difficult to spot.
  3. Own-brand ads – influencers should not rely on bios or past posts to make it clear to consumers that they are connected to a product.

Own-brand ads are where the influencer promotes their own brands, rather than a paid collaboration with a third party. The fact that the ASA see this as a key issue is interesting. Indeed, it is an area in which the ASA has recently taken enforcement action against Molly Mae Hague, when she ran a non-compliant prize draw, which we commented on.

Key Takeaway:

Consumers are spending more time online and we expect to see the popularity of influencer advertising increasing year on year. The Competition and Markets Authority is also conducting its own investigation in this area, increasing regulatory pressure. CMA attention also adds the risk of financial penalties for those failing to follow the law.

The ASA’s Chief Executive, Guy Parker, has made clear that the regulators are poised to use their power to punish brands, agencies and influencers who fail to use the advertising disclosures the ASA has mandated.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 112
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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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