In case you missed it, on 23 March 2023, the ASA published an updated version of its guidance entitled "Making clear that an ad is an ad".
Perhaps it should be called "Using #AD in even more scenarios", or "Making clear ads are ads... even if they're not", or "Yes, really, we think even THAT is an 'ad'"...
CAP and the CMA partnered to publish the first edition of this influencer guidance on 28 September 2018, then published the second edition on 2 February 2020 following the ASA's research on ad labelling (which was a deeply unsatisfactory foundation on which the ASA has subsequently based its approach).
In the new guidance, the ASA doubles down on its approach, which I think needs a complete re-think.
One interesting statement in the new guidance is the following, which to my mind is controversial, frightening and unworkable in its ambiguity:
"If you’ve received payment or any other incentive from a brand, or you are otherwise personally or commercially connected to the brand, any related content will need to make clear that it’s advertising.
This means that whenever you receive any sort of incentive from a brand (even if it’s not money – free products and other benefits count too, see p5), or you are directly connected to a brand e.g., you’re an owner, employee, shareholder, director or have any other commercial or personal interest (i.e. family and friends), you need to make clear in any content where you feature or refer to the brand, that it’s advertising. This is the case even when the brand doesn’t know if or what you’re creating.
The easiest way to ensure that content makes clear when it’s advertising is to include a clear and prominent ‘Ad’ label upfront before people view the rest of the content (see p7). Both you and the brand are responsible for ensuring that content is properly disclosed, and you are expected to disclose throughout any ongoing relationship and in relevant content for a period of 12 months after."
This might seem innocuous, but it means the ASA and CMA are raising the bar yet again. There doesn't seem to be a de minimis shareholding, either.
So, make sure your closest celebrity pal doesn't "@" your new book or your products in any of their posts, or you'll both be in trouble. Similarly, if you have a 0.00001% share in Disney, maybe via your ISA or pension, you'd better include #AD in all your snaps of Mickey the next time you visit Disneyland, and perhaps your whole family ought to do the same... Come on ASA, give us something to work with here!
There are other bizarre and ridiculous situations that will be caught by this guidance, leaving influencers (and their advisers...) stumped as to where the ASA is going to draw and redraw the boundaries next.
Imposing an obligation on influencers to label so many disparate types of content as #AD really isn't appropriate or right. This label often gives consumers a misleading impression of what that content is - but it seems nothing else will do.
The new guidance contains a completely re-worked flow chart, so do check that out, even if you're only a relative or partner of an influencer.
Social movement - the removal of nuance...
If you are an influencer promoting your own products, the new guidance makes clear(ish) that the ASA won't apply the "payment + control test", it will just assume the CAP Code applies, and will usually expect a disclosure to be added.
The updated guidance still states that a label/disclosure isn't necessary if it's already obvious that the content is 'advertising' (i.e. commercial in nature). However, as we have seen from recent rulings, the ASA doesn't really think many posts are 'obviously' ads unless they include a label, so we come full circle and apply that old #AD or 'Ad' label again.
On the topic of influencers promoting their own brands/products, the ASA/CAP also published the following updated, detailed guidance: Recognising ads: Brand-owned and paid social media - ASA | CAP
The CMA's input into the new guidance includes the following sentence “Consumer law does not distinguish between types of endorsements, so whether you are promoting your own products/services or advertising/endorsing something on behalf of a brand, a clear and upfront disclosure is always necessary.” This goes beyond what the ASA requires. In my view, this also goes beyond what consumer protection laws require. For example, it might already be clear from the context that the content is an ad, so there might not 'always' be a need for a disclosure/label - but the CMA's view appears to be that a disclosure is 'always' necessary when an influencer is promoting their own product or endorsing something on behalf of a brand.`
So again, whatever tiny wriggle-room the ASA might give, the CMA appears to have squashed it.
There's no doubt the goal posts keep shifting, and while we can look forward to yet more guidance in a year or two, in the meantime the uncertainty continues, and the upheld rulings are set to continue...
Social talent and influencers are often left feeling demonised and confused, and are still begging for greater clarity and certainty.
I really wish the ASA and CMA would find their way back to reality on these issues, and focus on the bigger issues, such as the genuinely misleading or harmful social media posts. Leaving #AD to be used when it is appropriate. Perhaps if they did, #AD might mean something again.