Affiliate marketers and social influencers are a new and popular way of attracting customers through the use of social media and many brands are now pushing this form of advertising over many others because the potential reach can be huge.

However, it is easy to forget that all adverts published across social media platforms are monitored by the Advertising Standards Authority which is responsible for ensuring they comply with the UK Code of Non-Broadcast Advertising (the CAP Code). The CAP Code’s golden rule, if you like, is that adverts must not mislead the consumer.

The CAP Code can be a bit of a minefield to navigate so we thought it would be helpful to set out how you as an organisation using influencers, or as an influencer yourself, can ensure that your adverts and promotions meet the CAP Code’s standards.

Hashtags are more important that you might think

If a social influencer markets a product or service on a brand’s behalf, they’ve been paid to do so (either in cash, free products or discounts etc.) and the brand has some form of editorial control over the post, the post must be clearly identified as an advert before the consumer engages with the post.

So, what hashtags does the ASA deem acceptable?

• #Ad
• #Advert
• #Advertising
• [Ad]

And what sorts of identifiers are not acceptable?

• Sponsorship, Sponsored content, Spon, #Spon, #Sp
• In association with
• Thanks to [brand] for making this possible
• @ mentioning the brand

Don't be fooled, the term 'editorial control' is wide

The term 'editorial control’ can be ambiguous and will depend on the agreement between the influencer and the brand. As a rule of thumb, if the influencer is not completely free to say whatever they want, whenever they want, then there is usually some level of editorial control. Control is not limited to the text accompanying the post, but also in images, video and any other type of content that may be created with specific conditions attached. Similarly, requiring posts to be uploaded a certain number of times or at particular times of day, and reserving the right to check the post before it is posted will all count.

But what if the influencer has been paid and there has been no control?

If the influencer has been paid, but it isn’t part of an affiliate arrangement and the brand has zero control of what (or even if) the influencer is posting, then it is unlikely that the content will count as advertising under the CAP Code. In that case, it’s a little like sponsorship and the ASA won’t pursue complaints about it. That said, arrangements like this are still subject to consumer protection legislation which expects influencers to disclose when they’ve received any form of monetary payment for posting about a brand’s products.

Remember: both the influencer and the brand are responsible

If a complaint made to the ASA about an advert is successful, both the influencer and the brand will be held responsible.

The ASA is pretty reasonable, and will usually resolve complaints by asking the influencer to take the post down; however, if there is a good reason, the ASA can formally investigate the complaint and question the relationship between the brand and the influencer.

If the ASA does choose to investigate, it will post its ruling on the ASA website (whether the complaint is upheld or not). This form of public shaming can have an effect on the reputation of both the brand and the influencer which is something that everybody wants to avoid.

If the brand and influencer ignore the ASA's suggestions, harsher sanctions can be applied (although this is generally a last resort).

The golden rule

The CAP Code seeks to prevent adverts that might mislead the consumer, and this golden rule should govern the way that both brands and influencers approach adverts on social media platforms.

If a post makes any sort of claim, those claims must be true, and the facts should be available to support them if the post is ever challenged. Year on year, roughly 70% of the complaints the ASA receives relate to misleading adverts, which demonstrates that this is an issue that consumers do take seriously. A good example is where brands claim that their products offer some sort of health, beauty or slimming effects. If these claims cannot be substantiated by clinical trials, you may run into trouble (but not always).

It's not over when it's over

Even where the relationship between the brand and the influencer has come to an end, if the influencer continues to post about the brand or its products, consumers may still think that there is an affiliation.

The ASA therefore advises influencers to continue using advert identifiers such as #AD at the beginning of their posts for at least 12 months after the end of the arrangement.

It may seem obvious but the easiest way to avoid these issues is to refrain from posting about past relationships.

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