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 latter (i.e., influencer ‘advertorial’ content) – for content on a brand’s social media profile (including brands owned by influencers), as well as paid-ads on social media, see ‘Recognising ads: Brand-owned and paid social ads’. For advice on affiliate marketing see 'Online affiliate marketing'.
Section 2 of the CAP Code requires that marketing communications are obviously identifiable as such. Many ads and other marketing communications are obviously recognisable as advertising purely by virtue of their content and the context in which they appear e.g., ads in newspapers, ‘promoted’ posts on social media, leaflets, posters on billboards, etc. One type of advertising that is less readily identifiable, due to its close resemblance to surrounding ‘editorial’ content, is influencer marketing on social media.
There isn’t a particular number of followers needed or a specific occupation that would make someone an ‘influencer’. Though they may be named differently on certain platforms or in regulatory frameworks, e.g., ‘bloggers’, ‘streamers’, ‘celebrities’ or ‘content creators’, the ASA typically defines an influencer as any human, animal or virtually produced persona that is active on any online social media platform, such as Facebook, Instagram, Snapchat, TikTok, Twitch, YouTube, and others.
Influencer marketing is also not restricted to social media, but it’s certainly the most popular media for influencers. The ASA’s research on labelling influencer marketing found that social media users really struggle to tell apart advertising content from non-advertising content in this space, especially (but not only) when influencers use the same editorial style for both types of content. This is not all that surprising when you consider that most users are scrolling through a vast amount of content, at pace, swiftly moving from one piece of content to the next, within their already busy lives. When influencers and brands seek to seamlessly blend editorial and advertising, the onus is not on the consumer to do the work to establish when they are engaging with an ad – that is the responsibility of brands and influencers. It’s, therefore, especially important for those involved in influencer marketing to take particular care to ensure their advertising is obviously recognisable as such.
- 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
- Take extra care when targeting children
- Remember that the rest of the Code applies
- What if it isn't covered by the CAP Code?
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.
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.
Whenever a brand gives an influencer a payment or any other incentive (requested or unsolicited), or an influencer is otherwise personally or commercially connected to the brand (e.g., 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. There’s further advice on what counts as payment here and on page 5 of our ‘Influencers’ guide to making clear that ads are ads’.
When a third-party brand also has ‘editorial control’ over the content, the ASA can also take action under the CAP Code. Further guidance on this can be found in our advice on ‘Remit: Advertisement features’ and in our ‘Influencers’ guide to making clear that ads are ads’. When a particular ‘advertorial’ is found to breach the CAP Code, both the publisher (i.e., the influencer) and the brand will be named in the ASA ruling.
Where an influencer is promoting their own brand or products that they’ve collaborated in the creation of, such content falls within the scope of the CAP Code as 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’, ‘Recognising ads: Brand-owned and paid social media’ and in our ‘Influencers’ guide to making clear that ads are ads’.
The CAP Code also applies to ‘affiliate marketing’ — a type of performance-based marketing where an influencer receives a commission for clicks/sales generated by a personalised link or code. When an influencer includes an affiliate link or code in their content, they are acting as an advertiser since they are earning commission based on the interest they generate in a product. This means that any content referring to a product for which there’s also an affiliate link/code, will count as advertising. When the ASA assesses marketing content created by ‘affiliates’, they typically consider the brand at least jointly responsible – regardless of whether they were aware or had control over the specific content. For further guidance on this see ‘Online Affiliate Marketing’ and our ‘Influencers’ guide to making clear that ads are ads’.
Though the ASA and CAP accept there are differences between the underlying commercial arrangements behind ‘advertorial’, ‘affiliate marketing’ and ‘own brand’ promotion, the rules apply equally to all forms of marketing communication (including the requirement for them to be obviously identifiable as ‘ads’).
For further guidance see our ‘Influencers’ guide to making clear that ads are ads’.
Ensure influencer marketing is obviously identifiable
In contrast to content 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 content.
As the ASA’s research on labelling influencer marketing found that people really struggle to identify when social media posts by influencers are ads, at a minimum, the ASA is likely to expect such content to include a prominent ‘ad’ label upfront (which usually means ‘at the beginning’) to highlight that a post is a marketing communication. The audience should be able to recognise immediately when content is advertising, without having to click or otherwise interact with it, and they shouldn’t need any special knowledge or have to figure it out.
In terms of where a label needs to be, this depends on the nature and format of the content and the platform it appears on. 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 at the end, putting it in a colour that contrasts poorly with the background (Emma Louise Connolly in assoc. w/ Calzedonia, 18 August 2021) or placing it ‘under the fold’ where consumers would need to click ‘See more’ to expand the post (Zoe de Pass t/a Dress Like A Mum, 20 November 2019), 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’. Not everyone is a social media marketer, a content creator, or an advertising legal professional - nor should they have to be.
The ASA (and the CMA) prefer labels that explicitly call out the content as ‘advertising’ e.g., ‘Ad’. It’s not necessary to use a ‘#’ as part of the label, provided it is prominent and clearly separate from any other content. In the absence of any evidence of a more effective label for such content, this will usually be considered the most appropriate label. This applies to all types of marketing content, from a post about a gifted product all the way through to a brand collaboration but brands and influencers are also free to include further information about the type of ‘ad’ the content is - provided it’s clear that it’s an ‘ad’ upfront and any additional words or explanations will be understood by the average person.
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.
For further guidance see our ‘Influencers’ guide to making clear that ads are ads’.
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.
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).
Many 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 very likely to be problematic. In several cases, content has only included an “@ mention” or tagging of the brand, but these were not considered by the ASA to be sufficient to identify the post as an ad (Sony Interactive Entertainment Europe Ltd t/a Playstation, 21 December 2022; Prettylittlething.com Ltd, 7 April 2021; Boohoo.com UK Ltd in assoc. /w Luke Mabbott, 10 February 2021; Prettylittlething[dot]com Ltd, 8 January 2020; 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). In these cases, the influencers and brands were told to include a clear and prominent identifier such as “#ad” in future.
Because the term “sponsored” is open to varied interpretation, we 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” and “#[BrandName]Ambassador” does not adequately convey the nature of the content (Emma Louise Connolly in assoc. w/ Calzedonia, 18 August 2021; Cocoa Brown. 07 August 2019). It is also unlikely to be sufficient to rely solely on statements like “my collection”, “our WEDIT”, “we created together”, “my @[brand] edit”, or “#iworkwith[brand]” in most contexts (Never Fully Dressed Ltd, 30 November 2022; Next Retail Ltd, 2 November 2022; Primark Stores Ltd, 27 October 2021; Missguided Ltd, 14 April 2021; Genus UK Ltd t/a Select Fashion, 31 March 2021).
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, and this finding was reflected in a 2020 ruling that an Instagram Story containing the standalone label "*affiliate" was not sufficient for the Story to be recognisable as an ad (Asos.com Ltd, 22 April 2020). The ASA considered it insufficient not only because it was partially obscured by the "swipe up" button, but also because the term "affiliate" itself was not widely understood by consumers.
The ASA’s research also found that posts that included things like discount codes were not recognised as ads by most participants. Consumers would need to read and interpret the discount code to recognise that it was personalised to the influencer, understand the underlying commercial relationship behind the discount code, and take into account wider contextual information in order to potentially appreciate that the content might be advertising. This is inconsistent with the requirement for it be obvious upfront and the ASA have ruled against a number of social media posts with personalised discount codes. While they've considered that the inclusion of a discount code might suggest that the influencer was undertaking promotional activity on behalf of the brand(s), they've concluded that of itself is insufficient to make clear to consumers the nature of the relationship between the parties in the context of social media content (Tara Maynard in assoc. w/ LookFantastic, Hairburst, Elemis and Rodial, 25 January 2023; Relx (UK) Ltd in assoc. /w Louis Shaw, 29 June 2022; Jamella Ltd t/a GHD in assoc. w/ Emily Canham, 4 November 2020; Coco Shine, 27 June 2018; Convits Ltd, 03 January 2018).
Where the platform you’re using provides a tool which can label branded content for you, e.g., the ‘Paid partnership’ tool on Instagram, this may be sufficient if the label is upfront, clear, and prominent when it’s added to your content. If you’re not sure – for example the label is obscured by the background of your image or doesn’t make clear that the content is advertising – you should include an additional ‘Ad’ label.
For further guidance see our ‘Influencers’ guide to making clear that ads are ads’.
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 – before they engagement with the content - 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. right 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 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 and Instagram, 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 (Zoe de Pass t/a Dress Like A Mum, 20 November 2019). Video content on platforms like Instagram and TikTok should make their commercial intent clear before consumers click through to watch the video if possible - if not it should made immediately clear from the outset that the content is advertising (Prettylittlething.com Ltd, 7 April 2021; Boohoo.com UK Ltd in assoc. /w Luke Mabbott, 10 February 2021; 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 (Wahoo Fitness (UK) Ltd, 7 March 2018; Mondelez UK Ltd, 26 November 2014).
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.
For further guidance see our ‘Influencers’ guide to making clear that ads are ads’.
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 (Prettylittlething[dot]com Ltd, 8 January 2020; 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 can apply 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).
Similarly, when they began receiving complaints about content on TikTok, the ASA immediately applied the same rules and principles to advertising on that platform (Prettylittlething.com Ltd, 7 April 2021; Boohoo.com UK Ltd in assoc. /w Luke Mabbott, 10 February 2021; Jamella Ltd t/a GHD in assoc. w/ Emily Canham, 4 November 2020).
Take extra care when targeting children
Younger children (under 12 years old) lack the critical understanding to recognise marketing content that is significantly integrated and/or highly immersive in online environments. This means that when a marketing communication is directed at under-12s (through the selection of media and/or the content), highly immersive or significantly integrated into the surrounding editorial content and unlikely to be identified clearly from the context in which it appears, it will require enhanced disclosure - meaning disclosures should be prominent, interruptive, and adequately indicate the commercial intent as well as the identity of the marketer.
Influencer marketing is, by its nature, significantly integrated into the surrounding editorial content and therefore unlikely to be identified clearly from the context alone. Although most social media platforms require users to be at least 13 years old to sign-up to access the platform, there are some where this is not the case e.g., YouTube. As such, any influencer marketing content that is directed at under-12s is likely to need to do more than simply include an ‘ad’ label upfront. The ASA is yet to rule on any examples but for further guidance on the principles and examples in other media, see ‘Recognising ads: Children’.
Remember that the rest of the Code applies
If something falls within the ASA’s remit, it must 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 this material, with or without editorial control by the brand, 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 it’s still been paid for in some way, 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.