In case you missed it, on 23 March 2023, the ASA published an updated version of its guidance entitled "Making clear that an ad is an ad".
Perhaps it should be called "Using #AD in even more scenarios", or "Making clear ads are ads... even if they're not", or "Yes, really, we think even THAT is an 'ad'"...
CAP and the CMA partnered to publish the first edition of this influencer guidance on 28 September 2018, then published the second edition on 2 February 2020 following the ASA's research on ad labelling (which was a deeply unsatisfactory foundation on which the ASA has subsequently based its approach).
In the new guidance, the ASA doubles down on its approach, which I think needs a complete re-think.
Socially awkward
One interesting statement in the new guidance is the following, which to my mind is controversial, frightening and unworkable in its ambiguity:
"If you've received payment or any other incentive from a brand, or you are otherwise personally or commercially connected to the brand, any related content will need to make clear that it's advertising.
This means that whenever you receive any sort of incentive from a brand (even if it's not money – free products and other benefits count too, see p5), or you are directly connected to a brand e.g., you're an owner, employee, shareholder, director or have any other commercial or personal interest (i.e. family and friends), you need to make clear in any content where you feature or refer to the brand, that it's advertising. This is the case even when the brand doesn't know if or what you're creating.
The easiest way to ensure that content makes clear when it's advertising is to include a clear and prominent 'Ad' label upfront before people view the rest of the content (see p7). Both you and the brand are responsible for ensuring that content is properly disclosed, and you are expected to disclose throughout any ongoing relationship and in relevant content for a period of 12 months after."
This might seem innocuous, but it means the ASA and CMA are raising the bar yet again. There doesn't seem to be a de minimis threshold here, either.
So, make sure your Auntie Betty doesn't "@" your new book or your products in any of her posts, or you'll both be in trouble. Similarly, if you have a 0000000000.1% share in Disney, maybe via your ISA or pension, you'd better include #AD in all your snaps of Mickey the next time you visit Disneyland, and perhaps your whole family ought to do the same... Come on ASA, give us something to work with here!
There are other bizarre and ridiculous situations that will be caught by this guidance, leaving influencers (and their advisers...) stumped as to where the ASA is going to draw and redraw the boundaries next.
Social anxiety
Imposing an obligation on influencers to label so many disparate types of content as #AD really isn't appropriate or right. The label often gives consumers a misleading impression of what that content is - but it seems nothing else will do.
There's no doubt the goal posts keep shifting, and while we can look forward to yet more guidance in a year or two, in the meantime the uncertainty continues.
Social talent and influencers are often left feeling demonised and confused, and are still begging for greater clarity and certainty.
One thing is certain, the upheld rulings are set to continue...
I really wish the ASA and CMA would find their way back to reality on these issues, and focus on the bigger issues, i.e. the genuinely misleading or harmful social media posts. Leaving #AD to be used when it is appropriate. Perhaps then #AD might mean something again.
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