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An Influencer’sGuide tomaking clearthat adsare adsLegal, decent, honest and truthful

Table ofcontentsLegal, decent, honest and truthfulWho are you?1What are the rules?2What counts as an ad?3- Affiliate marketing4- Advertorial5What counts as ‘payment’ for advertorial content?6What counts as ‘control’ for advertorial content?7What if there’s ‘payment’ but no ‘control’?8How do I make clear that ads are ads?9What are the CMA’s requirements?11What else do I need to remember?12Infographic: Is my post an ad and do I need to label it?13What happens when someone complains to the ASA?14Where can I get help? – CAP16Where can I get help? – CMA17Where can I get help – More18

Whoare you?The Advertising StandardsAuthority (ASA) is the UK’sadvertising regulator. The ASAmakes sure ads across UKmedia stick to the advertisingrules (the Ad Codes).The Committee ofAdvertising Practice (CAP),whose members representadvertisers, media ownersand agencies, is responsiblefor writing the Ad Codes.Together, we work to makeads responsible. We do thisby taking action againstmisleading, harmful or offensiveadvertising and providingadvice and training to helpbusinesses get their ads right.1Legal, decent, honest and truthfulThe Competition andMarkets Authority (CMA)is the UK’s primary competitionand consumer authority. We arean independent non-ministerialgovernment department withresponsibility for carrying outinvestigations into mergers,markets and the regulatedindustries and enforcingcompetition and consumer law.If we have concerns that amarket or business practicemay be harming consumerswe can investigate and takelegal action to stop it.For more information on theCMA see our homepage.

What arethe rules?Just because an ad is covered by theCAP Code, this doesn’t mean it’s aproblem – it just needs to follow the rules.There are lots of rules that could apply, dependingon the circumstances, but it’s worth paying particularattention to the UK Code of Non-broadcastAdvertising and Direct & Promotional Marketing(the CAP Code) and the Consumer Protectionfrom Unfair Trading Regulations 2008 (CPRs).The CAP Code, enforced bythe ASA, applies to most formsof influencer marketing. Justbecause an ad is covered by theCode, this doesn’t mean it’s aproblem – it just needs to followthe rules. The Code is brokenup into sections containing rulesthat relate to different subjects.For example, Section 2 containsrules about how ads shouldbe recognisable as ads, andSection 3 sets out rules thatadvertisers must followto avoid misleading people.Consumer protection legislation,enforced by the CMA, alsoapplies to influencer marketing.2Legal, decent, honest and truthfulThis makes ‘unfair commercialpractices’, including using‘editorial content in the media topromote a product where atrader has paid for the promotionwithout making that clear inthe content or by images orsounds clearly identifiable by theconsumer (advertorial)’ againstthe law. Other practices whichmay break the law are falselyclaiming or giving the impressionthat an individual is acting outsideof their business purposes orfalsely representing themselvesas a consumer; failing to identifya commercial intent behind asocial media post; and omittingor hiding ‘material’ information.

Whatcountsas an ad?There are a few different ways in which somethingyou post could count as ‘advertising’ and fall underthe rules in the CAP Code, including:Paid-for spaceThe most obvious way tomake something an ad isto pay for it to appear in‘paid-for ad space’, whichmeans space that is normallyused for ads, e.g. banner ads,paid-for search results and the‘sponsored/promoted’ postson social media platforms.3Legal, decent, honest and truthfulOwn advertisingIf you’re posting about yourown products/services; e.g.,products you sell and eventsyou’re running etc., then thisalso counts as advertising –even on your own personalchannels. The same goes forany prize draws or giveawaysyou do (these are ‘promotionalmarketing’ and you would bethe ‘promoter’).

What countsas an ad?– AffiliatemarketingFor affiliate ads,you are effectivelyacting as a secondaryadvertiser so you needto make sure that yourcontent follows all ofthe relevant rules.4Legal, decent, honest and truthfulAffiliate marketingWhen your content promotesparticular products or servicesand contains a hyperlink ordiscount code that meansyou get paid for every ‘clickthrough’ or sale that can betracked back to your content,this counts as advertising.If there are affiliate links ordiscount codes for only someof the products mentionedin your content, and the restyou’ve mentioned in a purelyeditorial capacity (i.e. there’sno affiliate link), then only thebits of the content that relateto affiliate-linked products areads, rather than the post as awhole. In that case, you onlyneed to make clear that thosebits are advertising.Obviously, if all of the contentis about affiliate-linkedproducts, the whole thing’san ad and you’ll need to makeclear upfront that the wholeof the content is advertising.For affiliate ads, you areeffectively acting as asecondary advertiser so youneed to make sure that yourcontent follows all of therelevant rules, not just theones on making clear thatit’s advertising.

What countsas an ad? –AdvertorialIf you work with a brand to create some contentthat you’ll be posting on your own channels, it’llqualify as an ad if the brand:1. ‘ paid’ you in some way(can be freebies, doesn’thave to be money), andIt’s not an ‘either/or’ – there hasto be both ‘payment’ and ‘control’for this type of post to count asan ad under the CAP Code.5Legal, decent, honest and truthful2. h ad some form of editorial‘control’ over the content,including just final approval.It’s not an ‘either/or’ – therehas to be both ‘payment’ and‘control’ for this type of postto count as an ad under theCAP Code.However, consumer protectionlegislation still applies wherethere has been ‘payment’ (i.e.any form of monetary payment,a loan of a product/service, anyincentive and/or commission orthe product/service has beengiven free) but no ‘control’ andthis is enforced by the CMA.

What countsas ‘payment’for advertorialcontent?Obviously, if you’re paid a specified amount ofmoney to create and/or post a particular pieceof content, this counts as ‘payment’.products, gifts, services, trips, hotelstays etc. for free, this is all likely toqualify as a ‘payment’6Legal, decent, honest and truthfulBut this isn’t the only typeof arrangement that counts.If you have any sort ofcommercial relationship withthe brand, such as beingpaid to be an ambassador,or you’re given products, gifts,services, trips, hotel staysetc. for free, this is all likely toqualify as ‘a payment [or otherreciprocal arrangement]’.There’s nothing wrong withgetting paid to create contentand this alone doesn’t makeit an ad for the purposes ofthe CAP Code; the brand alsoneeds to have some sort ofcontrol over the content.

Whatcounts as‘control’ foradvertorialcontent?7Legal, decent, honest and truthfulWhether or not a brand has ‘control’ over aninfluencer’s post will usually depend on theagreement you have with them. As a rule ofthumb, if you weren’t completely free to do andsay whatever you wanted whenever you wanted,then there could have been some level of editorial‘control’ by the brand.The simplest way for a brandto ‘control’ the content is bytelling you what you have tosay, e.g. if there are particularwords, phrases, themes or‘key messages’ you need toinclude, or you have to usea particular hashtag.This doesn’t just apply to textor words – if the brand hasspecified what needs to bein an image, required you toinclude a specific action in avideo or specified the type ofcontent you need to create (e.g.‘unboxing’ the featured product),this is likely to count as ‘control’.Requiring you to post a specificnumber of times, on certaindates or at particular timescould also count as ‘control’.If a brand reserves the rightto check/approve the contentbefore it’s posted and/or toask you to change it, this couldsimilarly count as ‘control’.They don’t need to actuallyask for changes – if they could,and you would have to do it(e.g. they could stop you fromposting), that’s enough.

What if there’s‘payment’but no‘control’?If you’ve been ‘paid’ (either in money or ingifts/freebies), but it isn’t as part of an affiliatearrangement and the brand doesn’t have any‘control’ of what (or even if) you post, it’s unlikelythat the content will count as advertising underthe CAP Code.Sponsorship isn’t covered by theCAP Code, and the ASA won’tpursue complaints about it.8Legal, decent, honest and truthfulIn that case it’s a little likesponsorship, in the way thatevents and TV programmescan be sponsored – thesponsor has no ‘control’ overthe actual content of whatthey’re sponsoring, they’rejust helping to fund its creation(and paying for an associationwith that content).Sponsorship isn’t coveredby the CAP Code, and theASA won’t pursue complaintsabout it.That said, arrangements likethis are still subject to regulationunder consumer protectionlegislation enforced by theCompetition and MarketsAuthority (CMA). The CMAexpects influencers to disclosewhen they’ve received any formof monetary payment, a loan of aproduct or service, any incentiveand/or commission or have beengiven the product they’re postingabout for free. The CMA haspublished some more informationon this here and here.

How doI make itclear thatads are ads?Under the CAP Code ads ‘must be obviouslyidentifiable as such’. This means that consumersshould be able to recognise that something is anad, without having to click or otherwise interactwith it. Since it needs to be ‘obvious’, consumersshouldn’t have to work too hard to figure it out.Most influencer marketingappears alongside independent/editorial content in a verysimilar style, so it often isn’timmediately obvious whensomething is or isn’t an adfrom the context alone.Both you (acting as a ‘publisher’)and the brand are responsible forensuring that advertorial contentmakes clear that it’s advertising.vertAdAD9Legal, decent, honest and truthfulUltimately, if it’s not obvious fromthe context that something’s anad, more needs to be done withthe content to make this clear.If you are promoting your ownproducts or services on your ownchannels – provided it’s clear thatyou’re talking about your ownproducts – people are usuallyable to recognise that you’readvertising your own stuff.Affiliate marketing andadvertorial content, on the otherhand, are much less likely to beclear recognisable by contextalone, so this is where you mayneed to work a little harderto make it clear. There arepotentially loads of ways youcould make advertising content‘stick out’ as being advertising,but by far the easiest is toinclude a prominent label thatmakes this clear.