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Advertising quandaries that aren't going away – disclosing influencer advertising

06 January 2022

At our recent roundtable, a group of consumer sector advertising stakeholders and in-house counsel considered an eclectic selection of challenges which are here to stay, including how to approach the environmental claims and dealing with influencers across different sectors and retail categories.

Influencers

It is perhaps a new indicator of age that some of us don't always immediately recognise celebrities appearing on shows like Strictly Come Dancing as people that are famous for being YouTubers or Influencers.

It is however a reality that many of those YouTube and podcast channels have a greater reach than many of the more instantly recognisable chat shows. 

Taking a couple of US examples, the Jimmy Kimmel show has the largest viewership at just 1.7m, a show like the Late Late Show with James Corden has under 1m viewers, by contrast the leading podcast, the Joe Rogan experience regularly gets many multiples of those numbers.  His most popular episode with Elon Must back in 2018 has nearly 50m views on YouTube alone and those numbers grow significantly when you add other channels in.

These examples also serve to illustrate the big difference when it comes to influencers, in that they find their audience on their own terms and it's an audience that may not have been served well by the limits of main stream media. It's easy to sneer at make-up tutorials and gaming demos but the reality is they have created platforms and audiences from scratch.

It is no wonder that advertisers are evolving their influencer strategy and embracing this new media in new and interesting ways. 

Rules around disclosing advertorial content have been around as long as the Advertising Standards Authority but the rise of vloggers, bloggers and the 'gram meant that people gained followers on social media without perhaps being aware of the law that requires paid for posts be declared.

Using editorial content to promote products without making clear promo is paid for and falsely representing oneself as a consumer are both Banned Practices under the Consumer Protection from Unfair Trading Regulations 2008. In a nutshell: consumers need to know an ad is an ad and there will need to be a label if the context doesn’t make it clear the influencer has been incentivised.

"I struggle with gifting. It's not covered by ASA but CMA advice seems to suggest you have to label it. Seems to be contradictory".

Who will be responsible and who will be contacted is always a concern. The stricter approach from the CMA means that brands tend to err on the side of caution.

"We have an influencer contract which states they have to have #ad in their posts. But we do have a lot of PR content where brand ambassadors have to do a certain number of posts. So we do it for everything, even if it's a gift".

"It gets complicated with things where it's highly regulated. We tend to avoid gifting as we don't have control of what they may say. They may tag it as gifted and then make claims that are not in line with compliant advertising - we don't have control"

Influencers trying to be helpful and saying more than requested can be a real concern in areas where there are specific requirements for what can and cannot be claimed about a product. There were quite a few participants who remembered as far back as the ASA ruling on Keith Chegwin's posts (available here).

A few participants noted that they now tend to have very clear explanations of what can and can't be said and make sure that the post is labelled and the influencer sticks to the script or they share genuine user generated content, but select it on the basis it aligns with requirements.

"The agencies are more sophisticated and the influencers are more educated."

The positive takeaway is that whilst there is clearly a long way to go with some individual influencers there is sea change in terms of understanding of requirements with many on the call noting that agencies are better versed in compliance requirements.

When it comes down to it, influencers built their influence through their audience and eroding that trust has ramifications in terms of reputation in addition to breaching the law and the codes. The ASA is clearly aware of this and has leveraged the reputational slant with the publication of its list of non-compliant social media influencers who routinely fail to clearly disclose advertising.

More on this topic…

For more on managing green claims risk and advertising quandaries that aren't going away, read this related article, where our experts consider the green claims challenges that are here to stay and how to approach the different issues of environmental claims across different sectors and retail categories.

Looking forward

If you want to discuss working with influencers, ad disclosure, your advertising or the underlying compliance of your products please get in touch with one of our experts on the contact details below.

Further Reading