THE CMA & ASA REGULATORY UPDATE

 
asaupdate.jpeg
 
 

 If you work or engage in influencer marketing in the UK you’ll have already heard about the recent CMA guidance and the subsequent re-hash of ASA guidelines that were created back in 2018. It seems to have put the industry into a bit of a frenzy with influencers interpreting very, very particular fragments of the suggestions and taking them a little too literally. Read our take on what you need to know, and what you need to take with a pinch of salt... 

To quote Geoffrey Rush in the unfortunately comparable Pirates Of the Caribbean; the code is “more of a set of guidelines than actual rules” and is still open to interpretation. This interpretation is what has put people into free-fall as everyone hoped for a concise, considered, workable set of rules - which these updates are not, sadly. Yes, they are guidelines stemming from long standing consumer laws and therefore should be considered and followed, however, the likelihood of it going as far as enforced action is minimal. The CMA isn’t that bothered about influencers, and the ASA will only respond to consumer complaints. In essence they put this together as a quick way to limit the noise they’re getting. 

 We work in an industry which requires no qualification, no level of professionalism and no criteria of understanding before entering into it. This is the beauty of it and why it holds so much potential; it’s real people, going about real life - talking about products and services they really use. There is no one, core organisation that represents influencer marketing - instead we fall into being a sub-section of 4 regulatory bodies (all of whom are themselves interlinked, yet fail to cross-communicate) in which none of them seem to have experts who understand the intricacies of our industry. 

 To save you an arduous read, here are the quotes from the guidelines that we feel are the most important above all others: 

  •  People need to know if influencers have been paid, incentivised or in any way rewarded to endorse or review something in their posts. It’s important that they make this clear to their followers. This includes when a product or service has been given to them for free. 

  • If you’ve been ‘paid’ (either in money or in gifts/freebies), but it isn’t as part of an affiliate arrangement and the brand doesn’t have any ‘control’ of what (or even if) you post, it’s unlikely that the content will count as advertising under the CAP Code.  

  • You don’t need to make multiple statements in each post where there is both a past and current relationship with the same brand or business 

  • It is not likely that there will be just ‘one way’ of explaining your relationship to a brand. 

  The guidelines are set out to avoid a circumstance where a follower feels misled. All that matters is that your audience understand you, your content and know when you are being incentivised to talk about products or services. They should never be left wondering. Put simply; if you keep an open narrative on how and why you came across certain brands then it’s highly unlikely you’ll ever get into trouble. The CMA have to monitor every single sector and every single organisation in the UK so unless you are promoting illegal, immoral or inappropriate content it’s not likely they’ll ever bother you. The ASA only respond to consumer complaints and do not proactively seek out influencers falling foul of their suggestions.  

 So, be open, honest and conversational with your audiences and you’ll be absolutely fine. Yes, you may have the odd wild card where "Janet" suspects your carpet wasn’t paid for and the ASA hold an obligation to follow it up - but know that their complaints department find this as hysterical as you do… 

  Here are some other thoughts and questions we have had from clients and influencers, to try and put minds of brands, influencers and general consumers at rest.. 

I’ve seen two influencers talk about the same product and label their content in an entirely different way. Which is correct?


Firstly, you need to ask yourself why this bothers you. Is it because you were left feeling misled by the way one influencer presented the product? Or is it because you feel there is a certain way of doing things and one of them didn’t satisfy that? If the former, you are right to be concerned because that is the sole point of these guidelines; consumer understanding. If it was the latter; please understand that the CMA and ASA suggestions are open and not officially set.  

 Providing the context of the content is established, neither of them are wrong. Nowhere does it say that they “must” do anything - other than label content in a way which isn’t ambiguous. There isn’t really anywhere that says “you must put #AD.” Instead, it tells influencers that their audiences must understand when promotional activities are happening, and cites an example of using this as being through using AD or #AD. If the influencer is able to bring this across in their own narrative, thats fine. 

  The only thing to affirmatively remember is that the consumer must know this from the moment their eyes fall on the content, so putting #AD or AD at the very end of a caption isn't really enough and could well be considered a breach. However, as we'll touch on further in this article, we feel if an influencer is hiding an advert, it may well be because they're not entirely sure their audience will like the brand partnership. If thats the case the question really is; should you have done it all?  

  We seem to have entered a time of influencers being smoked out for foul play almost as if it’s a sport, so please understand that the only time that a complaint is going to be considered reasonable in the eyes of a regulator is when an influencer is actively and deliberately trying to portray a product or service as an organic recommendation when they have been financially or commercially incentivised. 

I’ve been sent a gift from a brand that I wasn’t expecting, if I talk about it is it an AD?


The “gifting” part of the new guidelines seem to have sent everyone into a frenzy. We feel the most important factor to consider with gifting isn’t a regulatory one, but a moral one. Essentially just tell your followers where, why and how you came across a product in a clear, concise way. If you were sent it in the post, say you were sent it in the post. If you got it at an event, say you got it an event. Put #gifted on there to satisfy consumer angst and cover off any small chance regulators decide it needs official contextualisation, but essentially if you are explaining (loud and clear) how you came to have this product then you are covered.  

 Whilst the ASA and CMA guidelines seem pretty open, one thing we can be certain of is there is no need to put “AD Gifted” or any version of that text, with or without a hashtag unless you have expressly been asked to create content by the brand who sent it to you in return for the product. We have read the documents over 10 times, nowhere does it say that.  

 The ambiguity seems to come from the idea of all gifts being “payment” or “reward.” However, it needs to be considered that in all professions (be they on the internet, open for interpretation, or not) research is required and most influencers aren’t in a position to spend a vast amount on say, a designer hand cream. So, if you are an expensive hand cream brand, the only way you are ever going to be able to “work” with these people is if they have some experience with the product. This means sending the product, to try in their own homes, for them to then come back to them and say, “Hey, this works, let’s do something.” 

 Brands have somewhat exploited the gifting loophole to date and influencers have suffered for it, so it’s good that these new rules will make brands think about what they are sending out and what they are expecting in return (in our view, the new guidelines actually protect influencers from being persuaded to provide continual free promotion for brands). But, it’s often forgotten that it’s OK to want to share and scream about an incredible perk of the job. If an influencer is sent an enormous bunch of flowers and a perfume they’ve always wanted, consider that they might not be showing off or brand building - they’re just actually quite chuffed. 

Why do some influencers use “sponsored” and others use “AD”?


Sponsored content has finally been disregarded as an acceptable term by all of the regulatory bodies. Previously, if a brand held absolutely no authority or sign off into the content being created it could fall into the “sponsored”category. Which of course meant 0.1% of content partnership ever fell into it, but brands and influencers seemed to ignore this and use it as it comes across as softer than a hard AD declaration. 

  It has to be remembered that influencers can only keep going if their audiences continue to enjoy and engage with their content. It’s no secret that the minute an influencer displays a commercial relationship, engagement dips. This has led to a whole swarm of expressions and ambiguous terminology popping up; sponsored, ambassador, in partnership with, with thanks to… The one good thing that has come out of this recent adaptation of guidelines is CAP, the CMA and the ASA have all said that none of the ambiguity is acceptable. However, understand that influencers will be nervous about this if they feel they have relied on these kind of terms to maintain engagement. So, if you like somebody’s content literally “like” it and show them some love rather than go “oh its an advert so I’m not interested.”  

  It’s a chicken and egg situation and until consumers understand how and why influencers work with brands, influencers won’t relax into being comfortable with declaration. This is why influencers try to bury declarations within a sea of hashtags; not to deceive the consumers but to try and protect their engagement level. 

Do influencers need to put an explanation to every single product in an image?


Yes, it’s probably wise to cover yourself off. But as much as because your audience want to know as regulation requires it. Again, this comes down to more of a moral obligation.  

 One thing we do think will be interesting to see play out are exclusivity clauses given the new guidelines. Now that everything should be labelled, brands will have to pay out a lot more money to ensure influencers do not promote competitors (whereas before they could leave them untagged or uncredited).

How should influencers explain the use of affiliate links?


The issue of affiliate marketing is vast and deeply complex. Affiliate marketing is no new thing, it’s been around for over 20 years as a way for websites to generate revenue. For example, Skyscanner is an affiliate website; every time you book a flight through them they get a small percentage of the sale. The same with insurance brokers, financial recommendation sites (Moneysupermarket), forum and information sites (yes, Mumsnet use affiliate links - the irony of influencers being ripped apart of link usage on their forums should not be lost on anyone…). The Daily Mail is the UK’s largest affiliate generator, making a rumoured £300,000 a week from clicks made through their “Fashion Finder” tab. Do any of them clearly label this? No. 

Influencers were very late to the game and saw it purely as a way to be able to make a few quid out situations when followers decided to buy something off the back of their recommendation. This in essence, is how 99% of influencers work. However, over Black Friday and key shopping period there were those that exploited it with link after link and this kind of behaviour has made audiences question the purpose of the link in the first place. Furthermore, when a £10 jumper is photoshopped to an inch of its life in an influencer’s content, it’s probably not going to look like the edited version. This causes some friction.  

The guidelines are very murky over what they consider acceptable practice for disclosing affiliate links. We find this incredibly disappointing as from a professional perspective the suggestions reek of a lack of research, which is a shame when so many businesses and experts would happily help them. We feel influencers should simply say it how it is; if it’s an affiliate link, say it’s an affiliate link. The ASA guide talks about it only complying if there is an “affiliate arrangement” which rarely happens. Networks like rewardStyle operate in such a way that influencers can access links to websites and brands completely without their knowledge. 

We don’t feel affiliate marketing is an advertisement and here’s why: The definition of an advert is a fixed, signed agreement between two parties whereby one promotes the other. With the way affiliate marketing works, the brand often has no idea that they’re being promoted as the influencers can generate a link to their site without their knowledge. Therefore, as we said, for us it isn’t (and will never be) an advert. As long as your followers know an affiliate link is being used it'll be fine (#affiliate is far better than #aff as there is no possibility of misunderstanding). 

Does it matter if I put AD or #AD, where should the declaration go in my caption?


There is a myth in the industry that putting #AD will mean the Instagram algorithm will eat up your content and not serve it to your audience. This is incorrect. The elephant in the room is that the only things that’ll ruin your engagement are irrelevant content, or a general consumer feeling of not liking paid for content. 

 One thing we have never understood is when an influencer complains publicly that their content didn’t perform. It’s essentially screaming out to your community that something you are doing isn’t working. Algorithm myths are exactly that; myths.  Stop blaming other things and instead take the time to go “Ok, they really didn’t like it when I stood next to a tube of toothpaste, so maybe I shouldn’t do work like that” in the same way a magazine, website or content creator reviews and changes up their content flow. Or, stick with it an accept your engagement will always be low and that means there will be a commercial impact; less brands will want to work with you.  

 There seems to be a trait of influencers commencing a commercial project with content that almost apologises for doing it. This makes our blood boil because you should only really need to do that if justification is required; meaning you could understand why your audience would think this wasn’t the best fit. If thats the case don’t do the project! If it doesn’t 110% fit you, your content and your aesthetic - don’t do it! We hope these regulations really do make influencers consider the projects they are taking on, as it has such a deep impact into their general perception in the market. 

Anna Hart