Reed Smith LLP’s Nick Breen: why the influencer buck doesn’t stop at #ad

Social media influencers have repeatedly been in the spotlight over the past few years for their brand associations and paid-for posts. Influencer marketing has become big business and, with the pandemic making it more difficult for brands to engage in more traditional forms of advertising, their reliance on influencers to reach their target market has intensified even further.

With the blurring of lines between editorial selfies and paid-for posts on social media, there have been a spate of ASA rulings against influencers and brands for failing to adequately disclose to followers when they are seeing an advert. Although this is nothing new (the first ASA ruling concerning influencer disclosures being back in 2012), over the past three years the ASA, CAP and the Competitions and Markets Authority (CMA) have ramped up their scrutiny of these activities.

There have been numerous investigations undertaken, warnings given to leading influencers, and various iterations of guidance published, all designed to educate influencers of their disclosure obligations and to crack down on misleading advertising on social media.

The key message for influencers is that they are responsible for the posts they share and if those posts contain a promotional message or have been paid-for in some way, then they are required to comply with the same advertising laws that any other brand is required to comply with.

Until recently, the majority of rulings and guidance relating to influencer marketing have focused on the influencers’ obligation to disclose any commercial relationship they have with a brand through use of the social media tools and, most importantly, appropriate labelling (#ad etc.). This continues to take up a good deal of the ASA’s time and only last week was former Love Island contestant, Luke Mabbott (above), rapped for inadequate disclosure of his association with Boohoo.com.

However, influencer obligations do not end with #ad, and they were given a timely reminder of this by the ASA earlier this month. The ASA investigated two posts shared by influencers advertising tanning products. The influencers had applied filters to their posts, which the ASA believed misleadingly exaggerated the effect that the tanning products were capable of achieving. The ASA considered that using filters in ads is not ‘inherently problematic’, but given the circumstances, it was likely that their use in these ads would be misleading to consumers.

The rulings have once again underscored the need for influencers (and the brands they work with) to take care not only to disclose the commercial relationship they have with one another, but to follow the other requirements of the CAP Code. With brands being jointly responsible for their influencers’ compliance with the rules, it will be incumbent on them to help influencers navigate their responsibilities. Influencer marketing can be difficult field to navigate, and it is important to afford influencers the support they need to comply within the law.

Nick Breen is a partner at Reed Smith LLP.

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