Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Various types of ads can appear on social media, from posts on a brand’s own feed to ‘affiliate’ or ‘advertorial’ posts that have been published by an influencer. This advice article focuses on the former (i.e., content on a brand’s social media profile - including brands owned by influencers, and paid-ads) – for influencer ‘advertorial’ content, see ‘Recognising ads: Social media and influencer marketing’ and for affiliate marketing see ‘Online Affiliate Marketing’.
The overarching requirement in Section 2 of the CAP Code is that all advertising needs to be ‘obviously identifiable’. This means that when a consumer sees an ad, it should be immediately obvious to them that they’re looking at an ad.
- Make sure you know when you’re advertising
- Ensure that brand ads and paid-ads are clear
- Remember that the rest of the Code applies
- What if it isn't covered by the CAP Code?
Make sure you know when you’re advertising
It’s important to have a clear understanding of when content posted on social media counts as ‘advertising'. If it falls within the ASA’s remit, there are many different rules that could apply depending on the types of claims and on the product being advertised.
The CAP Code applies to ‘paid-for’ advertising on social media websites and apps, such as the ‘pre-roll’ ads that appear on YouTube, as well as the display ads both on the website and that appear during video content, ‘Promoted’ tweets on Twitter, ‘Promoted’ posts on Reddit, ‘Promoted’ pins on Pinterest, ‘Sponsored’ posts on Facebook and Instagram, the ‘Sponsored’ stories and ads that appear within other stories on Snapchat and ‘Ad’ content on TikTok.
It also applies to some content on a company’s own social media channels, i.e., material that is directly connected to the supply or transfer of goods, services, opportunities or gifts or a direct solicitation of donations (See ‘Remit: Social media’ and ‘Remit: Own websites’ for further detail). Given the nature of social media and the role it plays in creating brand awareness and engagement, marketers should be aware that any content that bears a relationship to the products or services they offer has the potential to be considered directly connected and therefore within the ASA’s remit.
When an influencer is personally or commercially connected to the brand (e.g., ‘paid’ by, owner, employee, shareholder, director or have any other commercial or personal interest), any content featuring or referring to the brand will need to be obviously identifiable as advertising. This is a requirement under consumer protection law, enforced by the Competition and Markets Authority (CMA) and Trading Standards Services. The CMA has published advice on this here and here.
Where an influencer is promoting their own brand (i.e., one they own or are a director or employee of) or products that they’ve collaborated in the creation of with another brand, such content falls within the scope of the CAP Code when it amounts to marketing content by the brand in non-paid for space online under their control, that is directly connected with the supply of goods, services, opportunities, or gifts. Further guidance on this can be found in our advice on ‘Remit: Own websites’, ‘Remit: Social media’ and in our ‘Influencers’ guide to making clear that ads are ads’.
If you are an influencer, or a brand/agency working with one, and have a question around whether a piece of social media content is advertising that needs be disclosed as such, please use our self-help tool here.
See ‘Remit: General’ for more on how to establish whether a post is covered by the ASA and the CAP Code.
Ensure that brand ads and paid ads are clear
When it comes to ‘paid-for’ ads on social media websites and apps, these are usually obviously identifiable as such through their positioning, labelling and wider context. Each social media channel has its own conventions for displaying advertising which, arguably, becomes quickly recognisable to users.
That said, rule 2.3 states that ads must make their commercial intent clear to consumers, so even ‘Promoted’ or ‘Sponsored’ posts could break the rules if they misleadingly imply that they’ve been placed by someone other than the advertiser. For example, if a third-party website publishes an affiliate article about a brand’s products, and the third party also pays for a ‘Promoted’ post to direct consumers to that article, this post should make clear that the article itself is an advertisement feature, rather than a piece of independent editorial.
When businesses or brands post about their own products or services on their own social media accounts, and they are identifiable as the entity that posted the content (i.e. their brand username is displayed), this content is generally considered to be obviously identifiable as advertising for that brand. In that case additional labelling, such as “Ad”, is unlikely to be necessary.
However, if it is not immediately clear that a social media channel is ‘brand-owned’ – for example, because it uses a different ‘username’ that consumers are unlikely to link with the brand – then the ASA will expect the marketer to make clear that the content is advertising by some other means (Procter & Gamble (Health & Beauty Care) Ltd t/a Beauty Recommended, 27 May 2015).
Influencers must also make sure it’s clear when they’re posting about their own products / services; e.g. products they sell and events they’re running etc., or any prize draws or giveaways they do (the latter are considered ‘promotional marketing’ and the influencer would be a ‘promoter’). If it’s not immediately clear that the influencer is posting about their own product(s) or those that they’ve collaborated in the creation of, the ASA is likely to expect relevant posts to, at a minimum, include a prominent label – such as ‘#Ad’ upfront (Zoe de Pass t/a Dress Like A Mum (DLAM), 20 November 2019; Unleashed PR Ltd t/a I Spy Eyes in association with Marnie Simpson, 25 October 2017).
As with all considerations under the CAP Code, context is key. While the use of language like “my @brand team”, “we are bringing”, “share this journey with all of you” and “What it’s *really like* shooting a campaign for your own brand” as well as other contextual elements might indicate a commercial relationship, the fact that ads need to be ‘obviously identifiable’ before people engage with the content means these messages need to be clear upfront, and it won’t be sufficient if the audience needs to have read or watched the whole of the content to understand the commercial intent (Erim Kaur t/a ByErim, 8 March 2023; Jamie Genevieve t/a VIEVE, 22 December 2021). It is also not always clear that phrases like “my sparkly moisturiser”, “my hydration mist”, “my notebook”, “my own hinch heart bowls” mean that these products are from an influencer’s own range or that they receive royalties/commission for sales, as opposed to merely indicating products that they own (Sophie Hinchliffe t/a Mrs Hinch, 15 March 2023; Sophie Hinchliffe t/a Mrs Hinch in assoc. w/ Tesco, 15 March 2023, Charlotte Dawson t/a Dawsylicious Tanning, 22 December 2021).
While it can help with identifiability when a brand name is clearly synonymous with the influencer, whether a brand name is recognisable enough can be difficult to judge and context will always be key. For example, the ASA considered that Sophie Hinchliffe was widely known by her abbreviated name “Mrs Hinch”, and that the name was synonymous with the “Hinch” brand – and, therefore, judged that an Instagram Story which featured a notebook open at a page titled “My Hinch List”, and text stating “HINCHLIST” and “HINCH NOTEBOOKS”, was considered obviously identifiable without the need for any additional ‘ad’ label (Sophie Hinchliffe t/a Mrs Hinch, 15 March 2023). However, the brand names “VIEVE” for Jamie Genevieve, “ByErim” for Erim Kaur and “Dawsylicious Tanning” for Charlotte Dawson were not found to be sufficiently synonymous to make content obviously identifiable on their own (Erim Kaur t/a ByErim, 8 March 2023; Charlotte Dawson t/a Dawsylicious Tanning, 15 February 2023; Jamie Genevieve t/a VIEVE, 22 December 2021; Charlotte Dawson t/a Dawsylicious Tanning, 22 December 2021).
Similarly, it’s not necessarily self-evident why an influencer might be sharing advertising content from a brand/business account on their main/personal account, even with overlaid captions like “It’s officially out there. We did it. 100% naturally derived” and “Coming this Friday @ 6pm” as, without prior knowledge of the relationship between the influencer and the brand, such phrases are likely to be ambiguous (Erim Kaur t/a ByErim, 8 March 2023).
The ASA has also ruled that the label ‘#myownbrand’ when displayed in smaller text and placed in the top right-hand corner, away from the more prominent main text, was insufficient, though it is unclear how the ASA might have judged the label with more prominent placement (Charlotte Dawson t/a Dawsylicious Tanning, 15 February 2023). In another case, the ASA did not consider the labels “#muffboss” or “#irishowned”, in the context of a post for Muff Liquor by an Irish influencer, made it sufficiently clear that the post was a marketing communication (The Muff Liquor Company, 8 February 2023).
Remember that the rest of the Code applies
If something falls within the ASA’s remit, it has to comply with the Code in its entirety. It therefore should not, amongst other things, materially mislead consumers or cause serious or widespread offence.
Some sections within the CAP Code are sector-specific, which means that ads for particular product types (e.g. Foods, Alcohol, Gambling) must comply with very specific rules, whereas other parts of the Code (e.g. Misleading Advertising, Harm and Offence) apply to all ads irrespective of the product/service they are advertising.
What if it isn’t covered by the CAP Code?
It’s important to remember that even when something isn’t covered by the CAP Code, the content may still be subject to regulation by another regulatory body, such as the Competition and Markets Authority (CMA) or Trading Standards Services.
If the content doesn’t fit any of the definitions in the CAP Code, but there’s an underlying commercial or personal relationship, the CMA requires that this should be indicated to consumers. The CMA has published advice on this here and here.
See also “Recognising ads: Overview”, “Remit: Social media”, “Remit: Advertisement Features”, “Online Affiliate Marketing”, "Recognising ads: Advertisement features". "Recognising ads: Newspapers and magazines". "Recognising ads: Social media and influencer marketing”, “Recognising ads: Brand-owned and paid social media”, “Recognising ads: Children” and "Recognising ads: Native advertising".
The CAP Advertising Guidance notes on ‘Advertisement features’ and ‘Recognition of advertising: online marketing to children under 12’, as well as the ‘Influencers’ guide to making clear that ads are ads’, also provide further guidance.