Brands that use intermediaries in affiliate marketing are still responsible for ad compliance
It's an established ASA position that content which contains affiliate links is advertising, and therefore needs to be labelled so that consumers know the content creator/influencer is benefitting financially from the content. The ASA's ongoing project on ads for affiliate marketing using intermediaries, the ASA has upheld a series of rulings where the brand didn't have any kind of current commercial connection with the influencer, but was still found to be responsible for the non-compliance.
The ASA is keen to emphasise that in cases of affiliate marketing, both the brand business and the affiliate marketer are responsible under the CAP Code. Notwithstanding the fact that the ads may have been created solely by the affiliate without any input from the business and has gone as far as publishing a video on this point. The use of intermediaries in affiliate marketing can result in brand businesses further losing control of affiliate content featuring their brand, leading them to believe that they are not responsible for the content. However, the ASA made clear that even where an influencer purchases products themselves and does not receive payment or other incentive from other parties, if they create content featuring a brand's product that is available to buy through an affiliate link (that earn the influencer commission), then the content is an ad and the brand retains joint responsibility with the influencer for its compliance. The interesting point here is that in the past, when publishing ruling against traditional media and advertisers for failing to disclose advertorial content, the ASA would publish sister rulings for the publisher and the brand. All of these rulings only have the advertiser named in the ruling, and whilst the influencer is named within the ruling, the ruling is not against them.
Once it had set out this analysis, the ASA considered whether the ads were identifiable as such. CAP Guidance, including "Influencer's Guide" to ads, routinely recommends "ad" or "#ad" is provided without requiring a consumer to interact with a post (e.g. at the start of a caption). Where the ads did not include a prominent identifier, they breached the CAP Code.
The lesson here is that brands working with affiliate intermediaries should ensure that the intermediary understands the brand's responsibilities for affiliate content, and as far as possible, ensures any influencers creating content using the links understand that the content is an ad and therefore needs to be identified as such.
(Guang Zhou Shi Chen Ming Ke Ji You Xian Gong Si t/a MENGCOOL, Reiss Ltd, THG Beauty Ltd t/a Look Fantastic, Wenzhou Xinyu Maoyi Youxian Gongsi t/a XINYU TRADE, 25 September 2024)
Don't link the consumption of alcohol with unsafe activities
In some countries, alcohol advertising is banned altogether, the UK allows it as the rules aimed to avoid the irresponsible promotion of alcohol are complied with. A complainant challenged an Estrella Damm ad because they thought it featured people playing a significant role in the ad, depicted as drinking the product at a musical festival who were, or appeared to be, under 25. The ASA noted that the people were 25, 26 and 28 years old and noted that while attending a music festival could be viewed by some to be a youthful activity, festivals were generally not exclusively attended by those under 25 and so didn't uphold the complaint.
Unfortunately for the advertiser, this complaint put the ad in front of the ASA and it had things to say about the fact that people were apparently drinking alcohol on rocks by the sea and jumping in the sea. It concluded there is a clear link in the ad between drinking alcohol on the coastline and swimming, both of which are activities in which drinking is unsafe or unwise, and ruled the ad in breach of the Ad Code. (DAMM 1876 LTD, 25 September 2024)
Stay up to date with product restrictions – CBD isn't for children
The ASA ruled against websites making claims that Cannabidiol (CBD) is safe for children and that the recommended maximum consumption of CBD per day for adults was 70 mg.
The Food Standards Agency guidance is that CBD is not taken by children, and whilst its 2020 guidance recommended healthy adults should limit their consumption of CBD from food to 70mg per day, this was updated to 10mg per day in 2023.
One advertiser's claim that CBD "helps balance the wellbeing of your child" was also in breach because there are no authorised health claims for CBD on the Great Britain nutrition and health claims Register for adults or for children, so there was no specific authorised health claim to support the general health claim regarding children's wellbeing. (Excite For Life Ltd, Vape Life Ltd t/a CBDLife UK 18 September 2024)
Ads must not misleadingly imply that prizes have real-world value if they do not
The ASA has upheld multiple rulings for ads that misleadingly imply that the apps featured are a gambling product in which real-world money or tangible prizes could be won. The ads in question included game footage that emulated slot machine games, used classic casino terminology such as 'boost your jackpot chances, 'win massive prizes' and other associated gambling terminology such as 'payout', 'withdraw', and 'cash out'. Some of the ads also featured individuals who said they switched from gambling at casinos, and as a result had won large sums of money. In fact, the ads featured social casino apps and that neither real-world money nor prizes could be won through gameplay.
In upholding the rulings, the ASA considered that the ads did not make clear that the games did not offer the opportunity to win or withdraw real-world money or tangible prizes. Some ads linked to a web page that, in small text, made this clear, but the ASA considered that clicking through from the ad was a transactional decision in relation to downloading the game, and considered that consumers were not provided with information that was material to that decision. One ad did include a disclaimer, but the text appeared at the bottom of the ad in small white font that made it difficult to read against a backdrop that changed colour in quick succession. Providing an explanation at the point when the app is downloaded is too late. Other ads contained no disclaimers at all. As a result, the ASA considered the claims and imagery featured gave the impression that the apps were a gambling product in which real-world money or tangible prizes could be won and withdrawn, and concluded that the ads were misleading and breached the CAP Code.
(Dataverse Co. Limited t/a Gamehaus, Huuuge Global Limited t/a Billionaire Casino, Mobee Co Ltd t/a Ignite Classic Slots, SpinX Games Ltd, Zeroo Gravity Games LLC t/a Cash Tornado, 25 September 2024)
Winners of competitions must be clearly announced
When running a competition, the CAP Code requires promoters to publish or make available information that indicates that a valid award took place. The advertiser ran a competition on Instagram and replied to the winner's comment on the competition post to announce them as the winner. It argued that Instagram's comment ordering algorithm meant the comment announcing the winner would have been extremely likely to show up in the top ten comments on the post when viewed by users. However, the post amassed thousands of comments, which the ASA considered meant users were extremely unlikely to know that a winner had been announced without clicking into and looking at the comments section below the post. It also considered that the algorithm used by Instagram to order comments could not be relied upon to ensure that the winning comment was one of the top comments. It also considered that, even if that were the case, a user would still have needed to interact with the post and scroll through at least the first few comments to see that a winner had been selected.
The ASA understood some users had commented on the post asking whether or not a winner had been announced, which it considered further suggested that replying to the winner directly, on a post with thousands of comments, was not a sufficient way of announcing that a valid award had taken place. Because the winner announcement was lost in the comments section of the post, the ASA concluded the promotion had not been conducted fairly and that it breached the Code. (Nasty Gal Ltd, 11 September 2024)
Auto-renewal must be made clear
A website for Now TV was misleading as it didn’t make it sufficiently clear that free trials, which were automatically added to the basket, would auto-renew at a fee unless cancelled. This ruling is part of ASA's wider piece of work on online choice architecture. The Digital Markets, Competition and Consumers Act 2024 (DMCC) includes specific sections on the proper conduct of subscription contracts and specifically requires information about auto-renewal terms be made clear before a trader enters into a subscription with a consumer, so failing to ensure the terms of free trials are explicitly stated will only become higher risk. (Sky UK Ltd t/a NOW, 25 September 2024)
How to mitigate these risks
- When working with affiliate intermediaries ensure they and the influencers they work with understand the need to label ads as ads.
- Do not imply that prizes have real-life value if they do not.
- Stay away from the water alcohol advertisers.
- Keep track of changes in position by government bodies, regulators etc.
- When running competitions, clearly publish the winner.
- Do review information provided about subscription contracts to ensure it is clear.
- Do call your friendly neighbourhood advertising and consumer products lawyer to get help with the above.
