The Advertising Standards Association (ASA) recently published its second Influencer Disclosure Report, assessing levels of compliance with requirements on influencers to ensure that their relevant posts are clearly marked and disclosed as advertisements. In this monitoring exercise, the ASA (assisted by AI) analysed over 50,000 pieces of social media content across Instagram and TikTok, a sample of which was then verified by experts at the ASA.
The report indicates that there is a positive trend towards open and honest disclosure, but further work is still needed by influencers, brands, agencies and platforms to ensure that advertisements on social media are clearly marked as such.
Key findings in the report
The key findings were as follows:
- Approximately 57% of the influencer ads that the ASA analysed met the rules on disclosure.
- A further 9% made some attempt to use a disclosure label, but the language used was insufficient to make clear the commercial nature of the content.
- 34% included no disclosure at all.
- More than half of influencer ads promoting products and services in the fashion and travel sectors failed to give adequate disclosure.
- Statistically, there was no significant difference in effective disclosure rates between Instagram (55%) and TikTok (60%), nor among differing types of content: Instagram posts (58%), reels (56%) and Stories (53%) and TikTok posts (60%).
Advertising disclosure rules
The rules require that consumers are made aware when they are being advertised to so that they can make informed choices. Without clear disclosure, ads can be misleading and risk undermining trust in influencer content.
Where an influencer receives payment or other incentive from a brand, or where an influencer is otherwise personally or commercially connected to a brand, any related content will need to make clear that this is advertising. Any form of incentive can count as payment and must be disclosed.
Examples include where an influencer:
- is a brand ambassador or shareholder;
- has a position in the company that they are advertising;
- is collaborating with a brand;
- is receiving an exclusive discount or commission;
- uses any affiliate marketing such as encouraging consumers to use affiliate links; or
- was gifted products or services for free – regardless of whether these have been requested or have been received unsolicited.
Any content must be labelled clearly as advertising at the start of the content. The label must not be obscured or hidden in any way. The ASA encourages the upfront, prominent and clear use of #AD or #ADVERT as a bare minimum. Influencers are free to include further information about the type ofad the content is, provided it is clear and easily understood. Where the platform provides a tool to mark content as label branded, this can be sufficient if upfront, clear and prominent. The ASA advises against using #Gifted, #Affiilate or simply tagging the brand as such labels do not adequately convey the commercially persuasive intent of such posts.
Consequences of non-compliance
The ASA can take enforcement action to encourage compliance, including listing offending influencer to the non-compliant social media influencer page. In addition, serious breaches may be subject to action by the CMA and Trading Standards who have more sophisticated powers to investigate and take legal action for breaches of consumer protection law, including as recently enhanced under the Digital Markets, Competition and Consumers Act 2024 (DMCCA).
What next?
If your business uses influencer advertising as part of its marketing reach, the ASAs Influencer Guidance is a useful starting point. Further updates are expected following recent consumer law changes under the DMCCA, although the ASA has indicated that the current advice remains broadly correct. The ASA has stated it will continue to monitor compliance and social media content, and support influencers and brands in understanding the rules.
If you are an influencer, brand or agency and would like further advice on advertising requirements or in relation to a complaint received from the ASA, please get in touch with our Commercial and Technology lawyers at [email protected].
