Influencer Marketing: The regulators’ focus

Our recent article highlights how both the UK’s advertising regulator (the Advertising Standards Authority (“ASA”)) and the Competition and Markets Authority (the “CMA”) have been keeping a careful eye on influencer marketing, and in particular, reviewing influencers’ Instagram posts to ensure that commercial content has been appropriately disclosed to consumers.

What action is the ASA taking?

In a further escalation of focus on this area, the ASA launched a new campaign in January which uses targeted ads to sanction social media influencers who repeatedly breach advertising rules. The ASA say that ‘the rules are clear: it must be obvious to consumers before they read, ‘like’ or otherwise interact with a social media post if what they are engaging with is advertising’. The new campaign follows the ASA’s decision in June 2021 to publicly name and shame influencers who regularly fail to disclose their paid-for social media posts. According to the ASA in its March 2021 report, only 35% of the Instagram ad posts monitored by the ASA complied with the requirements of the CAP Code.

This new campaign starts with six influencers (Francesca Allen, Jess Gale, Eve Gale, Belle Hassan, Jodie Marsh and Anna Vakili) who have all been listed on the ASA’s website for not labelling their social media posts, stories or reels as adverts where appropriate, even after being contacted by the CAP Compliance team. The ASA will identify each of these non-compliant influencers in a targeted ad on Instagram, which shows the following message, individually tailored for each non-compliant influencer:

Influencer Marketing

The ASA will remove these targeted ads if the named influencer starts to comply with the ad rules, however they have not ruled out further sanctions if required. This could include the ASA working with social media platforms to have the non-compliant content removed, or the ability to refer offending influencers to statutory bodies such as Trading Standards.

What more might be done?

The ASA’s targeted ads mark a step-up in the ASA’s enforcement efforts against influencers who repeatedly fail to tell their followers when posts are paid for by brands. The new strategy is effective as the ASA’s ads are likely to damage the named influencer’s reputation and could deter brands from partnering with the influencer in future, thereby hurting the influencer financially. Currently the ASA and the CMA do not have the power to fine influencers for non-compliance.

However it is no secret that the CMA is calling on MPs to change this position, and is actively seeking a number of enhanced enforcement powers to help tackle widespread breaches of consumer law, including the issue of undeclared paid-for posts on social media. Plans for reforming competition policy, consumer rights and consumer law enforcement were released for consultation in July 2021 by the Department for Business, Energy, & Industrial Strategy. For more information about these proposals, please see our article here.

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