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It's a wrap – CMA publishes new advertising guidance for influencers whilst the ASA and CMA gather evidence on influencer marketing and impose sanctions for non-compliance

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Following the outrage caused by Instagram influencer Scarlett Dixon (also known as Scarlett London) in August 2018 for her advert for Listerine, it is no surprise that the Competition and Markets Authority ("CMA") are undertaking an investigation into whether online endorsements by influencers are misleading, and the Advertising Standards Authority ("ASA") has called for evidence from consumers in order to undertake a review of whether commonly-use indicators such as #ad are clear enough for social media users.

Following the outrage caused by Instagram influencer Scarlett Dixon (also known as Scarlett London) in August 2018 for her advert for Listerine, it is no surprise that the Competition and Markets Authority ("CMA") are undertaking an investigation into whether online endorsements by influencers are misleading, and the Advertising Standards Authority ("ASA") has called for evidence from consumers in order to undertake a review of whether commonly-use indicators such as #ad are clear enough for social media users.

Scarlett Dixon, who posted a photo of herself in her bedroom, with multiple heart shaped balloons floating around her bed, pancakes (later revealed to be tortilla wraps) and strawberries set beside her, and (right at the back of the photo) a bottle of Listerine mouthwash on her bedside table, is not the first to be scrutinised for her lack of transparency about paid adverts. Indeed, Made in Chelsea star and fellow Instagram influencer Louise Thompson was recently reprimanded by the ASA for failing to make clear that one of her posts was a paid advertisement for Daniel Wellington watches.

However, with 49% of 4,000 consumers questioned by Bazaarvoice / Morar Research about their views on influencers requesting more stringent rules on sponsored influencer advertisements, it is likely that the ASA and CMA will be implementing more stringent rules and/or will become more proactive in their scrutiny of non-compliant adverts.

The ASA already sets out a number of rules for advertisers in its CAP Code, including rule 2.4, which states that "marketers and publishers must make clear that advertorials are marketing communications", however, more recently, the Committees of Advertising Practice ("CAP") have also published "An Influencer’s Guide to making clear that ads are ads", to give influencers practical advice on complying with the CAP Code. This guide even sets out the circumstances in which the ASA will take action (when there is payment, plus editorial control) and when the CMA will take action (when there is payment, even if there is no editorial control) against influencers falling foul of the Code.

Further, the Advertising Standards Authority of Ireland ("ASAI") has also recently upheld a complaint filed against Irish blogger Rosie Connolly for posting a photo-shopped image online in connection with her promotion with Rimmel London cosmetics (part of the Coty group), without disclosing the manipulated nature of the image . The ASAI ruled that the image was misleading, particularly given that the product being prompted was Rimmel's 'Lasting Finish Breathable Foundation'. Although Rimmel argued that the manipulation of the image (using a built-in camera filter) was covered by the ASAI guidelines, it agreed to take down the disputed image.

All of this highlights the importance of ensuring that advertisements through influencers are clearly worded and well thought-out, as the consequences of not doing so can be detrimental to both the influencer and the brand. It is therefore crucial for both brands and influencers to understand and implement the necessary procedures in order to ensure compliance of these rules.

Fieldfisher's team have a wealth of knowledge and experience on the rules of marketing and advertising, as well as drafting bespoke agreements between brands and influencers. If you would like to know more about this topic, please contact James Corlett (james.corlett@fieldfisher.com) or your usual contact in Fieldfisher's Brand Development Team.

Co-authored by Arwa Abdeh.

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