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.
There are a number of different types of ads that can appear on social media, from the 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 latter – for the former, as well as paid-ads on social media, see ‘Recognising ads: Brand-owned and paid social ads’.
When it comes to social media, because consumers have less experience with some forms of advertising in this space, and advertorial content in particular is often difficult to distinguish from independent editorial or organic user-generated content, marketers/brands (and the publishers/influencers they work with) should pay particular attention to ensuring that marketing communications are obviously identifiable as such.
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 obvious to them that they’re looking at an ad. This guidance explains how the rules apply to such content on social media platforms (though for YouTube and similar video-sharing platforms, see also ‘Recognising ads: Blogs and vlogs’).
- Know when you’re advertising
- Ensure influencer marketing is obviously identifiable
- Make sure the label’s meaning is clear
- Take into account differences between platforms
- Don’t rely solely on the ‘bio’ or previous posts
- Don’t forget that the principles apply to ‘new’ formats too
- Remember that the rest of the Code applies
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, the CAP Code in its entirety will apply, and there are many different rules that could apply depending on the types of claims in the post, and on the product being advertised.
When a brand gives an influencer a ‘payment’ (i.e. any form of monetary payment, free loan of a product/service, any incentive and/or commission or a product/service has been given free), any resulting posts promoting the brand become subject to consumer protection law enforced by the Competition and Markets Authority (CMA). When a brand also has editorial control over the content, the ASA can apply the CAP Code as well.
The CAP Code also applies to affiliate marketing and instances where an influencer is promoting their own products or services (See ‘Online Affiliate Marketing’ and ‘Recognising ads: Brand-owned and paid social media’). Though the ASA and CAP accept there are differences between the underlying relationships, the same requirement to make these types of posts recognisable as ads applies.
A social media user doesn’t need a particular number of followers or a particular occupation to count as an ‘influencer’– in practice, the ASA defines an influencer as anyone who has been paid by a brand to advertise a product on their own social media, because of their social media influence.
Ensure influencer marketing is obviously identifiable
In contrast to the posts on a brand’s own social media page, when an influencer talks about a particular brand it isn’t self-evident whether they are expressing an independent opinion or whether they have been incentivised to do so by the brand. This is why it’s important for influencer ads to be clearly and obviously distinguished from other posts.
The ASA’s research on labelling influencer marketing found that people struggle to identify when social media posts by influencers are ads. As a result, at a minimum, the ASA is likely to expect such posts to include a prominent ‘ad’ label upfront (which usually means ‘at the beginning’) to highlight that a post is a marketing communication.
In terms of where a label needs to be, this depends on the platform and the nature and overall content of the post. It must be prominent enough that consumers will easily notice it and early enough that they will do so before they click on anything or otherwise engage with, or watch, the content. Burying a label in list of hashtags, putting it in a colour that contrasts poorly with the background or placing it ‘under the fold’ where consumers would need to click ‘See more’ to expand the post, won’t be sufficient. Any label also needs to be visible regardless of the device used, so it’s important to bear in mind how a post will look when accessed via desktop, mobile and in-app.
In addition to being obvious enough to be easily, and immediately, noticed – any label must also be understood by the audience. This means that it’s important to use clear and simple language that consumers are likely to be familiar with - and avoid abbreviations or ‘industry jargon’.
Both brands and influencers are responsible for ensuring that ads are obviously identifiable, so both need to ensure that the ads they create can be easily distinguished from the influencer’s independent posts.
Make sure the label’s meaning is clear
It’s not enough to merely indicate that an influencer marketing post is somehow different from other, organic posts. As well as standing out from the other posts, it needs to be clear that its ‘advertising’ and any label used needs to make that explicitly clear.
A number of brands and influencers have been found in breach of the Code for not including any identifying labels in their influencer posts – needless to say, not making any attempt at disclosure is usually likely to be problematic. In several cases, an Instagram post has included an “@ mention” of the brand name and/or a promotional discount code, but these were generally not considered by the ASA to be sufficient to identify the post as an ad (Brooks Brothers UK Ltd, 18 September 2019; The White Star Key Group Ltd, 31 July 2019; Warpaint Cosmetics (2014) Ltd t/a W7, 3 October 2018; Coco Shine, 27 June 2018; Convits Ltd, 03 January 2018). In all of these cases, the influencers and brands were told to include a clear and prominent identifier such as “#ad” in future.
The CAP Code specifically refers to “Advertisement Feature” as an appropriate label for ‘advertorial’ content and “Ad”, “Advert”, “Advertising”, “Ad Feature” and similar are all very likely to be considered acceptable by the ASA (with or without a ‘#’ – but it may be necessary to highlight the label in some way to ensure that it’s noticeable e.g. put it in brackets or add an asterisk either side).
Because the term “sponsored” is open to varied interpretation, we would advise against using this label to refer to advertising. The ASA have previously ruled that this descriptor was insufficient in a number of different contexts, including in influencer marketing (Britvic Soft Drinks Ltd, 18 November 2015).
Labels like “Supported by”, “Funded by”, “Gifted”, “In association with…” and “Thanks to X for making this possible” are also unlikely to be considered sufficiently clear (Mondelez UK Ltd, 26 November 2014). Similarly, the ASA have ruled that “#BrandAmbassador” does not, in most contexts, adequately convey that a post has been both paid for and had a level of control over the content by a brand (Cocoa Brown. 07 August 2019).
Abbreviated labels such as “aff”, “sp”, “spon” and other terms that consumers are unlikely to be familiar with (or interpret to mean ‘advertising’) – like “affiliate” – are also likely to be considered insufficient (Britvic Soft Drinks Ltd, 18 November 2015). The ASA’s research found that understanding of labels like this was particularly low amongst consumers.
Take into account differences between platforms and devices
Brands and influencers need to take care to ensure that advertising posts are obviously identifiable to all consumers who encounter the material - prior to engagement - and should bear in mind any limitations and technical ‘quirks’ on the platform they are using (e.g. any limits on the number of characters, how much is visible and the fact that some social media sites cut off text placed after hashtags or other non-alphanumeric characters).
Irrespective of the differences between platforms, consumers should be made aware that a post is an ad before they engage with it. Where this isn’t possible (e.g. if the ad in question autoplays), this needs to be clearly stated as soon as they engage with it (i.e. at the beginning).
On Twitter, as space is limited, including “Ad” (or similar) at the start of the tweet is potentially the clearest way of identifying it as advertising – though if the tweet is very short it could be considered equally clear when placed at the end, provided it’s not buried in amongst other hashtags. Similarly, on Pinterest where the amount of content actually controlled by the ‘pinner’ is limited, placing “Ad” or similar at the beginning of the free text ‘Description’, because only a small portion of this appears without clicking, is likely to be considered acceptable.
Where there is no character limit, for example on Facebook, it is likely that most posts will need to include an identifier at the beginning, though very short posts may be considered acceptable if the identifier is placed at the end of the text. It is not, however, acceptable for any disclosure to appear only after clicking ‘See more’ or otherwise clicking on or expanding a post.
In contexts where only an image is (initially) visible, such as Instagram, it may be that an identifier should be included on the image itself, as well as in the accompanying post. This is also true of videos in this space which should make their commercial intent clear prior to engagement i.e. before consumers click through/watch the video (Britvic Soft Drinks Ltd, 18 November 2015).
On Youtube and similar platforms, it’s likely that the title of the video and/or the thumbnail will need, at minimum, to include an identifier such as ‘Ad’ so that it is clear to consumers before they click to watch the video (Mondelez UK Ltd, 26 November 2014). For more on videos/vlogs, see ‘Recognising ads: Blogs and vlogs’.
Influencers and brands should be conscious of the way that content is displayed on different devices, and with different viewing settings. If text that accompanies a video or picture isn’t always visible, stating a label such as “Ad” in that text may be considered insufficient, since consumers won’t see it until after they’ve already clicked to engage with the content.
Don’t rely solely on the ‘bio’ or previous posts
Influencer marketing posts should be identifiable as ads without consumers needing prior knowledge of the influencer’s commercial relationships. Since social media posts are often viewed in isolation or in newsfeeds, the influencer’s ‘bio’ won’t always be visible alongside the post. For this reason, the ASA has ruled that stating in the ‘bio’ that an influencer is an ambassador for a particular brand isn’t sufficient on its own and relevant posts must also make clear when they’re advertising (Warpaint Cosmetics (2014) Ltd t/a W7, 3 October 2018; Platinum Gaming Ltd t/a Unibet, 7 November 2018; Brooks Brothers UK Ltd, 18 September 2019).
The ASA received a complaint about a video post on Olivia Buckland's Instagram page that showed her discussing and applying eye shadow from the W7 Life’s A Peach eye colour palette. They noted that Ms Buckland’s Instagram ‘bio’ stated “Ambassador for W7 Cosmetics…”, and acknowledged that regular followers were likely to be aware that there was a commercial relationship. However, because Ms Buckland’s profile was visible to the public, any posts she published could appear in search results and those posts could easily be viewed in isolation to her profile. As the content of the post itself did not make clear that it was advertising, they concluded that it was not obviously identifiable as a marketing communication (Warpaint Cosmetics (2014) Ltd t/a W7, 3 October 2018).
Similarly, a tweet from the official Twitter account of racecourse trainer Nicky Henderson that stated “We’re underway with the jumps and my exclusive @unibet blog is now ready to read …” and included a link to the blog, was considered problematic. Although Mr Henderson’s Twitter profile stated that he was a Unibet Ambassador, the ASA did not consider that this was sufficient to differentiate between tweets that were marketing communication from those that were not and that relevant tweets should have been identified as such (Platinum Gaming Ltd t/a Unibet, 7 November 2018).
Marketers should also not rely on previous posts. An Instagram post on Matthew Zorpas’ Instagram for Brooks Brothers was ruled to breach the Code because, although regular followers were likely to be aware that there was a commercial relationship based on his previous posts, as the posts could appear in search results and be viewed in isolation, each individual post needed to make clear it was an ad. While the post contained some elements that indicated there might be a commercial relationship between the parties, they ASA considered that the hashtags referring to the brand were insufficient to ensure that this post was obviously identifiable as an ad, both when viewed in-feed and when viewed in its entirety (Brooks Brothers UK Ltd, 18 September 2019).
Don’t forget that the principles apply to ‘new’ formats too
The rules in the CAP Code are largely ‘media-neutral’, meaning that the same rules and principles are capable of applying immediately to new platforms or new formats within existing platforms - as long as an ad falls within the broad categories of communication outlined in the ‘Scope of the Code’, it will need to follow the same rules. The categories are broad and refer to underlying factors like the relationship between a communication and the brand that it refers to, or the broad characteristics of the medium. When the ASA assesses whether an ad falls within its ‘remit’ (i.e. whether it’s able to regulate that material), it looks past the surface differences between different types of ads and bases its assessment on these principles.
As an example, an Instagram story seen on Louise Thompson’s page including a video of her showing a brush product and providing a discount offer was considered within remit as Ms Thompson had been contracted through an agency, paid a fee to promote the brand and required to include a promotional code. Ms Thompson responded that she had not been aware that the obligation to make clear when posts are advertising extended to the stories function but, as the ruling shows, the principles of the advertorial definition apply equally across all social media formats (Vanity Planet, 12 September 2018).
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.
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: Blogs and vlogs” 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.