Influencer Post Lacked Necessary Disclosure, Says British Ad Authority

Advertising Law

The British Advertising Standards Authority (ASA) has cracked down on influencer advertising, finding that even if a company did not explicitly require the influencer to post on its behalf, the simple fact that the individual has a relationship with the brand still must be disclosed.

A consumer complained about a post by reality television star Molly-Mae Hague on Instagram that featured an image of her wearing a coat with the caption, “A/W, I’m ready [brown leaf emoji].” She also tagged the official Instagram account for clothing retailer Pretty Little Thing (PLT) in the image.

The complainant challenged whether the post was obviously identifiable as a marketing communication for PLT.

PLT confirmed that Hague was a brand ambassador for the company and that, in accordance with her contract, any advertising services she performed for PLT had to be obviously identifiable to the consumer.

However, the company argued that the post was “organic” and outside the scope of the contractual agreement with Hague. Hague agreed, reiterating that the post was not an ad and that she only tagged PLT because she was wearing one of the company’s products.

The ASA was not persuaded. The content of the post did not make clear whether it was advertising as opposed to genuinely independent editorial content, according to the decision.

“Therefore, in the absence of a clear identifier, such as ‘#ad,’ we concluded that the post was not obviously identifiable as a marketing communication and that it breached the Code,” the ASA wrote. “Because Ms. Hague had a financial relationship with PLT as their brand ambassador and because the post featured her wearing a PLT product which was also tagged to PLT’s Instagram account[,] we considered that PLT had a level of control of the post that was sufficient for it to fall within the remit of the [Code].”

Hague identified herself as a PLT brand ambassador in her Instagram bio, but that was insufficient as a disclosure, the ASA added. While those who had chosen to follow Hague might be aware of her status, her account was set so that any posts she published could appear in search results and be viewed in isolation from her profile. “That meant Instagram users, who might not be followers of Ms. Hague’s profile, would be able to view the post without having seen her profile and the statement about her brand ambassadorship,” the ASA noted.

The advertising watchdog ordered that the post not appear in the form that prompted the complaint and instructed PLT and Hague “to ensure that their ads were obviously identifiable as marketing communications, for example by including a clear and prominent identifier such as #ad.”

Why it matters: In general, content is subject to ASA’s enforcement jurisdiction when the advertiser has paid for and has some form of editorial control over its content. In this instance, the brand acknowledged that the influencer was a paid influencer pursuant to a written contract. While neither party was willing to provide the ASA with a specific copy of the agreement, PLT admitted that the contract required Instagram posts be identified by a tag to the @prettylittlething Instagram account, include a mention of @prettylittlething and be tagged as a “paid partnership with prettylittlething.” However, the advertiser argued that the post in question fell outside of the contractual arrangement because it was “organic” content distributed by the influencer due to her general interest in the brand, without advertiser input, and that as such, its content was not under the control of the brand; therefore, the advertiser argued, the post was not subject to ASA’s jurisdiction and no disclosure was required in this particular post.

The ASA expressly dismissed the brand’s argument, holding that the financial and contractual relationship between the parties, and the fact that the post featured Hague wearing a PLT product that was also tagged to PLT’s Instagram account, meant that PLT had the requisite level of control to fall within the jurisdiction of the Committee of Advertising Practice code. Whether or not the post was contractually required as part of the influencer’s brand ambassadorship, she still needed to disclose her relationship with PLT, the ASA said, and she had an obligation to make sure that her posts were “obviously identifiable” as a marketing communication. Both PLT and the influencer were reminded of the requirement to include a disclosure, such as the use of #ad, in any future marketing communication.

It should be noted that a similar principle and reasoning apply equally in the United States, as the Federal Trade Commission (FTC) has mandated that influencers must disclose the existence of a brand relationship if they endorse it or its products. Similarly to the ASA, the FTC would view the fact that PLT did not approve, contractually require or pay for this particular post as immaterial to the determination of whether an influencer disclosure is required. If the influencer has a material connection with a brand, regardless of whether the brand has editorial control over that particular post, and even if the brand didn’t pay the influencer to make that particular post, the influencer still has an obligation to disclose any material connection it maintains with a brand. An existing contract with the brand that pays them to generally endorse the brand or its products is the material connection that requires a disclosure be made. This case serves as a good reminder to brands that they should regularly monitor all of their influencers’ social media presence to ensure that influencers disclose material connections where the influencer mentions the brand, its products or its services, even in cases where the brand didn’t previously approve or pay the influencer to make that post.

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