Full disclosure: My colleagues Adam Glass, Brinsley Dresden and I have acted for two of the celebrity influencers who were involved in this CMA investigation. [N.B. clear and prominent disclosure, at the start of this post.....]
The CMA today published the results of its investigation into disclosures made by celebrity influencers.
The CMA hasn't found the celebrity influencers to be in breach of the rules - ultimately, only a court can decide whether a particular practice infringes the law. Instead, it secured formal commitments from 16 celebrities to ensure they adopt a high degree of transparency, both in the way they alert followers about paid endorsements and the way they refer to perks and products which they have been given or loaned- even when those perks or products might have been unsolicited and with no strings attached.
Tacitly acknowledging that there are myriad overlapping rules with which influencers and brands have to grapple, the CMA and ASA issued joint guidance for influencers and brands in September 2018. Following the conclusion of this latest investigation today, the CMA has now provided further updated guidance in this area, providing greater clarity for celebrity influencers and brands.
The CMA has traditionally been keener to point out what it doesn’t consider to be compliant, rather than to provide firm guidance on what it does consider to be compliant. As we're dealing with fairly nuanced situations, the latest CMA guidance is therefore most welcome.
It’s clear that influencers will need to do more than just thank a brand – ambiguous language within the post itself (such as ‘thank you’, ‘made possible by’, ‘in collaboration with’, or‘ thanks to...') is insufficient. Endorsements must be disclosed clearly, for example by placing the hashtag #ad or #advert at the beginning of a social media post, in addition to any affiliations which are disclosed on influencers’ profile pages.
This latest guidance from the CMA is part of an ongoing process and the regulator will now be turning its attention to the social media platforms themselves, reviewing whether the tools built into these platforms are adequate to disclose paid endorsements to consumers.
The CMA's latest short guidance note, to help influencers comply with the CMA's interpretation of the rules which apply in this area, can be found here.
The full details can be found on the CMA's website, here.
We've also been working with brands and influencers on Influencer Guidelines that can help all parties navigate these choppy waters. Let us know if we can help with yours.
Social media platforms including Instagram already have built-in tools, such as the paid-partnership tool, which make it clear that a post is an advertorial. But one lawyer told the BBC that the UK's rules were still complex. "The CMA has portrayed these posts as if some celebrities are deliberately trying to pull the wool over the eyes of their fans, but often it is just that the various guidance is difficult to follow," said Geraint Lloyd-Taylor, legal director at law firm Lewis Silkin. "I think the hashtag #ad will become the default, but it seems that the CMA intends to also look more at what the platforms are doing and it might be that we see more built-in tools and other changes from them as well."