Influencers can be great when it comes to providing advertising to an engaged audience. Caroline Swain explains the rules and regulations

The problem

Your restaurant or hotel’s marketing team wants to use social media influencers. You’ve read news stories about brands being called out for not working correctly with influencers and you want to make sure your brand is protected.

The law

The primary regulation when it comes to marketing is the Consumer Protection from Unfair Trading Regulations 2008 (CPUT), which restrict what brands can do in their marketing practices, including 31 blacklisted practices which are unfair and prohibited.

In addition to legislation, the UK has a system of self-regulation governed by bodies like the Advertising Standards Authority (ASA). The ASA is responsible for enforcing the CAP Code (a self-regulatory code published by the Committee of Advertising Practices).

When it comes to influencer marketing, if the influencer’s content falls within the ASA’s definition of an ad, the provisions of the CAP Code will apply. Influencer content is an ad if:

• the brand has paid for the content (payment includes cash, a gift, an experience or similar); and
• the brand has any editorial control over the content (‘editorial control’ is interpreted widely – not just a right to review the content. It could include a requirement to tag the brand in the post or reference a promotion, for example).

Expert advice

The world of influencers is rapidly evolving. While most influencers have not yet joined the ranks of traditional celebrities, there are now service teams specifically supporting influencers on branding and commercial relationships. Contracts are now expected, and having a firm contractual position is the norm.

Brands are responsible for ensuring that consumers know when they are looking at an ad which, due to the way that influencer content is shared, is not always obvious.

The ASA therefore recommends that the content is clearly labelled (eg by use of “#ad”). Failure to make this clear is a breach of the CPUTs and the CAP Code.
But labelling and disclosure isn’t the only thing to remember – if the content is an ad, all the usual rules around advertising will apply.

Beware

Both parties will be held responsible for failure to comply with the legal requirements. For the brand, failure to comply may result in bad publicity and brand damage; censure from the ASA; a referral to the Trading Standards Services; possible court action and criminal prosecution; legal action by competitors or consumers; and a loss of consumer confidence.

This article was written by Caroline Swain, caroline.swain@crsblaw.com, and it was first published in The Caterer on the 26th of July 2019. For the original article please click here.