Influencer Marketing Regulations: What Brands Need to Know

To the outside world, being an influencer hasn’t always been seen as a profession. It feels as though only in recent years, people are starting to recognise the industry for what it is – a huge marketing tool with lots of career opportunities. Like any industry, there are certain rules & regs to abide by to ensure you’re doing things correctly and that is no exception for influencer marketing.

Since being an influencer involves promoting products and services, this is a form of advertising and marketing so there are influencer regulations set in place by the ASA (Advertising Standards Authority), CMA (Competition and Markets Authority) and CAP (Committee of Advertising Practice). 

At Disrupt, it’s part of our job to stay on top of these regulations, so we’re able to monitor the campaigns we put out there and ensure they are following the rules set in place. A recent report from the European Union found that a huge 80% of online creators have been guilty of failing to disclose an AD properly – this kind of thing misleads consumers and is one of the main reasons the influencer marketing industry has tight regulations in place. 

There is a lot to keep on top of but Disrupt is here to break it down for you, so you and your brand know what needs to be done when working with content creators. 

When MUST Influencers Disclose an Ad?

Perhaps the biggest question on everyone’s minds is just what constitutes an “ad”. People may assume it is only when a creator is being paid directly by a brand to post on social media, but ads cover a wide variety of partnership types in the influencer marketing landscape, all of which must be disclosed correctly. This includes the below:

• Being paid for the post: the traditional form of advertising you’ll see on influencer pages, where a brand has given a brief, contract etc and they create content to promote the brand, product or service.
• Gifted products: if an influencer has accepted a gift from a brand and posts about it, this must be posted with ad included.
• Loaned products: even if the creator has something for a short time, this must be made clear.
• Gifted services: if a brand invites an influencer to their spa for example and the creator posts about it, ad must be disclosed in any posts.
• Products or services which have sent to the influencer without them requesting it: even surprise gifts must be clearly marked as an ad.

While these rules are a blanket regulation across all industry verticals, some industries in particular including alcohol, gambling and travel & tourism come with their own regulations. This can relate to the age of the influencer and audience, certain words that can or can’t be used etc. You can find a deep dive into this here. 

Should Influencers Mention their Relationship with a Brand?

Influencer marketing advertising rules state that creators also have to be transparent about the nature of a relationship with a brand. The following must be disclosed:

• Ambassadorships: if an influencer has a long-term relationship with a brand, they may post content including the brand without them asking, even these types of posts must be disclosed as an ad.
• Affiliate networks: creators can sign up to affiliate programs and earn commission from linking products and their followers purchasing through that link. If one of these links is used, ad must be clear.
• Press trips: brand trips (whether paid to be there or not) are also classified as advertisements, so any content surrounding these trips must be marked properly.
• Gifted holidays: like above, if a brand has gifted a holiday to a creator and they post about it, this must be disclosed as an advertisement.
• Commission-based discount codes: sometimes as part of campaigns, brands will offer exclusive discount codes for creators to share with their followers, whenever a creator shares this code with their followers, ad must be included.
• Friend or family of business owner: this one is slightly tricky as it’s hard to nail down what classes as a friend of the business, but for example, if a creator’s significant other owns a business and the influencer posts about it, this must be clear to their followers.

The Do’s & Don’t of Advertising a Paid Promotion

Perhaps the biggest thing to take away from all of this is that “ad” (or some variation of the word) really is the only acceptable form of labelling content. There are lots of other ways creators try to get around labelling content which might look a bit softer to their audience, and while they do this to ease followers into ad content, it isn’t correct.

According to the ASA here are the ways an influencer should highlight paid promotion to their audience, this includes everything mentioned above.

• Ad
• Advert
• Advertisement
• Advertising
• Advertising feature

There are lots of ways which have been seen on paid content which might look right but are not the correct way to properly disclose an advertisement. Here’s some bad ways that influencers do this:

• Supported by
• Funded by
• In association with
• Thanks to…
• Gifted
• Sponsored
• Sponsorship
• Affiliate
• Spon/sp
• Unfamiliar abbreviations

The ASA will not recognise any of the above when it comes to labelling paid-for content. If they see it or it gets reported then the brand, creator and agency (if applicable) could get into trouble. 

So that means, if an influencer receives a gift from a brand but has not been paid to promote it – but they do, “Gifted” is not enough, “Ad” must be used. This is in order to keep it as clear as possible to the consumer that the influencer is posting in exchange for goods of some kind, and it keeps things streamlined and a lot simpler if these labels are kept to variations of “Ad”.

It’s also worth noting that the ‘paid partnership’ label, often seen on TikTok, is NOT enough – across all platforms, “Ad” must be used.  “Ad” also needs to be at the start of a caption or post, not in the middle or end – and it must be super clear when used on stories.

ASA Influencer Regulation Issues

It’s not just issues such as a 2020 investigation that found only 35% of sponsored posts were clearly signposted as an AD that are bothering the ASA. There are things that creators have been doing that they are starting to crack down on, these include:

• Creators using stories to promote their Ad reel (and ad not being used in these stories): even story reshares of a reel must be disclosed, even if the creator has not been paid to do a story, they are still showcasing the ad content created.
• Visibility of ad labels: some creators will use “Ad” but make it very small on stories and hide it in the caption somewhere, making it less visible to consumers.
• Failure to label affiliate content as advertising: as mentioned earlier, all affiliate links need to be disclosed but some creators fail to do so as they feel they’re doing it organically, even when they are getting something in exchange.
• Reliance on bios to inform consumers of ambassadorships and other brand relationships: it’s common for creators to include in their bio if they have a big relationship with a brand, but simply writing “brand ambassador for xx” in bios is not enough to disclose the ad, it needs to be on every post.

What Happens if a Complaint is Made to the ASA about Your Ad?

This is all well and good, but what are the actual consequences of influencer marketing regulations and not following them properly? In the case that either the ASA spots an incorrectly labelled post or it gets reported by someone else, the following steps will happen: 

• The ASA will send a letter outlining why there has been a complaint and how many people complained.
• Their identity will remain confidential.
• They will invite you to comment on the case (defend it).
• They will take everything into account and rule whether the complaint should be upheld.

In the case that this happens, brands and creators can act quickly. If “Ad” is added to a post after, then the case can be resolved informally and won’t need further action, so this is the best thing to do. However, if a creator fails to label Ads consistently, the ASA releases a public name and shame list of creators who are non-compliant to ASA influencer guidelines. 

Posts will be deleted or taken down by platforms if they are seen to break regulations, affecting creator relationships with brands and their followers.

In other countries such as France, consequences can be much more severe, with influencers potentially facing jail time for not following regulations – but these are extreme cases.

In a nutshell, as long as a brand, you’re ensuring any creator you work with in any capacity includes “Ad” on social posts they post about your brand, you should be set. For more information or help on how to avoid ASA issues, get in touch with Disrupt and our influencer marketing experts will have you covered.