Influencer Marketing: Using Advertisement Feature Labels

The Advertising Standards Authority is expected to clamp down on social media influencers and name and shame them as part of a widespread audit that was conducted last year.

The three-week audit checked 122 UK-based influencers to see if their content was being properly disclosed under the advertising requirements. More than 24,000 Instagram Stories were involved in the exercise largely due to Instagram being the primary platform for influencer marketing. Nearly a quarter of the stories assessed were advertising, but of those only 35% were clearly labelled and identifiable as such, says the ASA.

It describes the level of non-compliance with the rules as “unacceptable”.

What are the rules around advertising disclosure?

When a brand gives an influencer a payment, any posts then promoting or endorsing the brand, or its products/services become subject to consumer protection law.

Payment means any form of monetary payment; commission; a free loan of a product/ service; a free product/service (whether requested or received out of the blue); or any other incentive.

This means that an influencer needs to disclose this in any relevant post where the content has been controlled by the brand, and the same applies to affiliate marketing.

It will also be a requirement to make it clear about an influencer’s own products or services e.g., events they are running or any prizes or giveaways.

What counts as a paid or sponsored post?

Obviously, if an influencer is paid a specified amount of money to create and/or post a particular piece of content, this counts as ‘payment’. But this isn’t the only type of arrangement that counts.

If an influencer has any sort of commercial relationship with the brand - such as being paid to be an ambassador - or free products are given (services, trips, hotel stays, etc.), this is all likely to qualify as "a payment [or other reciprocal arrangement]".

There’s nothing wrong with getting paid to create content, but influencers need to be upfront about this with their audience. When content is promoted through a discount code, usually with a hyperlink, then this must be declared as an ad.

The importance of being clear

Consumers should be able to recognize that something is an ad, without having to click or otherwise interact with it. Since it needs to be clear/obvious, consumers shouldn’t have to work to figure it out.

Most influencer marketing appears alongside organic/editorial content and is presented in a very similar style, so it usually isn’t immediately obvious to a consumer when something is or isn’t an ad from the context alone.

Remember it’s the influencer, the brand and agent who are responsible for ensuring the disclosure is prominent and not buried in hashtags.

What labels should be used?

Both the ASA and the CMA advise using labels that say it how it is, in a way that consumers understand. For example:

• Ad
• Advert
• Advertisement

Advertisement Feature Labels like this can be used with or without a hashtag (#). However, the ASA recommend staying away from these labels:

• Supported/Funded by
• In association with
• Thanks to [brand] for making this possible
• Just @ [mentioning the brand]
• Gifted
• Sponsored/Sponsorship

The main thing to remember is that you need to make it obvious. Any label (or other means) you use to highlight advertising content needs to be upfront (before people click/engage), prominent (so people notice it), appropriate for the channel (what can you see and when?) and suitable for all potential devices (it needs to be clear on mobiles and apps too!).

This means that burying the label in a sea of hashtags, putting it where it can only be seen by clicking ‘see more’, having to click to view the full post or only being able to tell a video is an ad by watching it, really isn’t going to cut it.

I recommend including the disclosure at the very beginning which might mean at the start of the post, in a title or thumbnail, or on an image (if that’s all people see at first).

Put yourself in your audience’s shoes – if you didn’t already know about your relationship with a brand, would you be able to tell immediately and without a shadow of a doubt that a specific post you had made was, in fact, advertising?

What happens when something goes wrong

Fashion brand Lord and Taylor ran a campaign with 50 micro-influencers, to create awareness for its Design Lab collection and sell products online. Influencers were paid between $1,000 - $4,000 to post a photo of themselves, and that they could style the dress in any way they wanted. They had to tag Lord & Taylor and Design Lab in their posts and each post was pre-approved. The results of the campaign on the face of it were truly amazing:

• 11.4 million views (reach) in two days
• 328,000 brand engagements with the brand's Instagram handle
• Many posts generated 1,000+ likes, several generated 5,000+ and some generated up to 13,000
• The company's dresses were sold out by the end of the weekend

Unfortunately, the influencer's posts did not disclose the proper regulatory advertising disclosures, which created a considerable media story after the FTC investigated the claims. The brand had a real challenge on its hand in terms of damage limitation.

Who enforces the law?

There are several regulators who might enforce the rules in this area, including the ASA and the CMA.

The CMA has the power to investigate and take legal action to stop breaches of the law that may harm the collective interests of consumers. When posting incentivized endorsements, the CMA expects commercial relationships/payments to be disclosed upfront and any views expressed by influencers to be genuine. Everyone involved in the chain (brands, marketers and influencers) should ensure that there are robust compliance processes in place that accurately reflect the requirements of the law.

It is important to note that industry rules may be specific about certain points but under consumer law, it does not matter who is ‘in control’ or who is selling a product/ service. Consumer law does not distinguish between types of endorsements, so whether you are promoting your own products/services or advertising/endorsing something on behalf of a brand, a clear and upfront disclosure is always necessary.

Although it’s not illegal for brands to pay people to promote their products in blogs, vlogs, tweets or other online articles, consumers need to know the endorsement has been ‘paid for’. If this isn’t clear, your post risks breaking the law.

I strongly recommend referring to the CMA’s guide for influencers if you are planning any influencer marketing campaigns, to ensure you protect your consumers, and ultimately stay on the right side of the law.

All extracts on the law have been used from the Influencers Guide to ensure clarity of message. You can also find more information on the full regulations in my book, Influencer Marketing Strategy.