UK influencer marketing watchdog seeks to clarify position

UK influencer marketing watchdog underscores importance of making it clear when influencers have been paid or incentivised to post online.

The UK influencer marketing watchdog has today sought to explain how the law affects influencer marketing and address some of the main questions it has received since its January announcement.  

Writing on its blog the Competiton and Markets Authority seeks to put the record straight on three fronts:

1. What the law says about influencer marketing

2. How this affects influencers (and brands)

3. Differing role between the CMA and the Advertising Standards Authority

The law and influencer marketing

There is a common misunderstanding that there are new influencer marketing laws in place in the UK. There are not. There are, however, new guidelines describing how to abide by those laws. 

READ: 16 top influencers sign watchdog pledge for clarity on ads

READ: CMA rewards influencers’ brand affinity

Consumer protection law requires anyone endorsing a product or service on social media to disclose clearly and prominently when they have received any payment, benefit (such as a free gift) or any other incentive.

How this affects influencers (and brands)

Influencers need to be open, upfront and honest with audiences. They should not give the impression that they are genuine customers when they are not. Any relevant disclosures need to be clear, prominent and upfront. This means that an influencer’s viewers or followers must see and immediately understand the disclosure before they start to view or read the post. It is not enough to capture disclosure and sponsorship deals in the bio. This applies regardless of the platform you post on or the device that your viewers or followers may use.

Differing roles between the ASA and CMA

The CMA article explains that whilst it works closely with the Advertising Standards Authority (ASA) they have different responsibilities.

The ASA is the UK’s independent advertising regulator. They respond to complaints from consumers and businesses and take action to ban ads across UK media which are misleading, harmful, offensive or irresponsible, in breach of the Codes written by their sister organisation the Committees of Advertising Practice (CAP).

Whereas ASA is focussed on adverts, the consumer protection law the CMA enforces doesn’t distinguish between an advert – where the brand controls the outcome – and an editorial review, where the influencer has taken payment but created the content independently.

In the UK we differentiate between sponsorship and advertising. The ASA oversees advertising whilst the CMA oversees sponsorship - amongst other remits. In the US both advertising and sponsorship is overseen by the Federal Trade Commission - the independent agency of the US government tasked with promoting consumer protection and regulating influencer marketing.

“What is an ‘advertorial’?

“An advertorial (or ‘advertising feature’) is a piece of content in editorial space which is paid for by a brand and over which they exercise some degree of editorial control. If a confectionary brand gives your favourite blogger a goody-bag on condition that they write positively about it, that’s an ad. If a travel company sends a vlogger on a free trip to the Andes on condition that they have final editorial sign-off for any videos made about it, those are ads. The ASA recently ruled on a Twitter ad for Alpro, with helpful references to the elements that meant it was covered by the advertising rules (CAP Code).

What is ‘sponsorship’?

“Sponsorship only has the ‘payment’ element and leaves editorial control entirely with the creator; these are not ads for the purposes of the CAP Code. If a computer company gives or lends a vlogger a PC on condition that they give an honest review, that’s not an ad. If a car company financially supports a series of news articles, but has no editorial input, that’s not an ad.

However, such arrangements are still subject to consumer protection laws and the attention of the Competition and Markets Authority.”

Further information

A joint guide between CMA, the ASA and CAP, gives more information about our roles and further practical advice for influencers when using social media.

My blog hold a separate section for influencer marketing disclosure and ethics

Consider reading:

• Product placement double standards affecting influencer marketing
• Influencer marketing disclosure: An interview with Hashtag Ad founder Rupa Shah
• Influencer marketing disclosure: beyond declaring sponsored content