The Crackdown on Undisclosed Advertising: ASA issues Warning to Influencers

The Adverting Standards Authority (“ASA”) has released its influencer monitoring report, summarising the results of the analysis the ASA conducted in September last year. The ASA conducted an analysis of over 24,000 Instagram stories, posts, and reels across 122 influencers to assess whether the rules in respect of influencer advertising were being followed. The ASA focused specifically on Instagram as 61% of complaints about influencers over the course of 2020 related to ad disclosure on this platform. The rules require that influencers disclose when their posts are ads. However, the recently released results of the ASA’s assessment revealed low levels of compliance.

The ASA found that, although one in four Instagram stories contained advertising, only 35% of these were clearly labelled as ads and obviously identifiable as such.

Some of the key issues identified by the ASA were:

• Discrepancies across Instagram stories, or between disclosure on Instagram stories, reels, and posts: Where there is advertising material in a consecutive series of Instagram stories, all such stories must be marked as ads. In addition, both posts as well as corresponding stories must be disclosed as ads.
• Placement and visibility of ad labels: The ASA noted that Instagram stories which were labelled as ads often contained obscure labels, which were difficult to spot owing to the font size or the colours used in the story.
• Insufficient disclosure: The use of hashtags such as #affiliate or #aff alone is not sufficient ad disclosure – there must be additional disclosure revealing that the content is an ad. Influencers also cannot rely on their bios or earlier posts as a way of disclosing their connection to a product. The ASA considers the use of a hashtag like #ad is a clear way of communicating that the content contains an ad.

The results of the ASA’s influencer monitoring analysis come after a series of efforts by the ASA to provide resources specifically for influencers to help them navigate the rules relating to disclosure of advertising content, including the CAP Code, which is underpinned by legislation such as the Consumer Protection from Unfair Trading Regulations 2008. The Competition and Markets Authority (“CMA”) has also been involved in these efforts. At the end of last year, the CMA secured undertakings from Facebook, pursuant to which Facebook committed to a package of measures designed to tackle hidden advertising on Instagram, including a tool which recognises if a post may contain paid-for content and prompts the user to disclose any incentives they have received for the post.

Guy Parker, chief executive of the ASA, said: “There’s simply no excuse not to make clear to the public when positive messages in posts have been paid for by a brand”. The ASA has contacted the influencers and brands that were monitored, warning them that they are on notice that spot checks will be conducted in the future. The ASA is now preparing for follow-up monitoring and further non-compliance will result in enforcement action, such as influencers and brands being named on the ASA website and targeted paid search ads on platforms.

The ASA’s warning is in line with previous efforts by the ASA and CMA to tighten the restrictions on undisclosed advertising. Whilst both bodies have taken steps to help influencers understand their obligations, they also expect both influencers and brands to be more proactive in ensuring compliance in this area.

In addition to lack of disclosure, another visible trend is influencers’ non-compliance with other ASA rules, such as those relating to misleading advertising. An example of this is the usage of filters to exaggerate the impact of cosmetics products, which is likely to mislead consumers about the effect of the advertised product. The ASA recently published specific guidance on this issue in the wake of two incidents involving influencers Elly Norris and Cinzia Baylis-Zullo promoting tanning products (see here and here).