The ASA will publish updated guidance on this and related issues very soon, but that can't come soon enough. It will come too late for many influencers who are just trying to do the right thing right now, and have been trying to follow the ASA and CMA's ever-evolving guidance in this area over recent years.

For example, a question I am sometimes asked is: "When do influencers have to include #ad in their post, if they are obviously promoting their own products?" well, the ASA's approach is... confusing. There, I said it! And trust me, "confusing" is the politest word I can think of to describe it.

I have been banging this drum for years, but perhaps clarity is just around the corner...

In the meantime, let's examine where we are now in light of this week's latest ruling.

The basic principle

The rule and the basic principle in the CAP Code are relatively clear:

Marketing communications must be obviously identifiable as such. (Rule 2.1)

In parallel, the Consumer Protection from Unfair Trading Regulations (enforced by the CMA), the following is a 'banned practice:

Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer. (Schedule 1, para 22).

To underline that point, the current ASA and CMA's joint guidance (published in 2020) makes clear that a disclosure is needed if it isn't already obvious from the context:

"Ultimately, if it’s not [immediately] obvious from the context that something’s an ad, a clear and prominent disclosure is needed."

At the time of writing, the ASA/CMA flowchart within that guidance states:

So far so good...

So, if it's already obvious from the content that it is an ad (or to use a more neutral term instead of 'ad', let's call it a 'commercial communication') then, based on the ASA's own guidance and the underlying rules, you do not need to use an additional label or disclosure, like #ad.

All well and good.

However, the problem is the apparently inconsistent and bizarre way the ASA decides whether it's "immediately obvious" that the post is an ad/commercial communication.

The line being drawn by the ASA is opaque and, when you do find that line, it's hard to understand why it was drawn all the way over there!

For example, a ruling published a few weeks ago involved an Instagram Story by Tara Maynard. The Story featured the text:

“Hairburst BOGOF sale code is TARAMAYS 10 for an extra 10% off. Lookfantastic code is TARAMAYS for 20% off most items.
Elemis code is TARAM25 off full sized products site wide. RODIAL TARA15 (they have 25% off pads this wkend! [sic] Grab the vitc!)”

The ASA inexplicably decided that it wasn't immediately obvious from the content/context that this was a commercial communication - despite listing voucher codes in the name of the influencer. They ruled that, in the absence of #ad, that post was materially misleading.

I think that ruling was a clear sign the ASA was raising the bar higher and higher. You can read more about that ruling here: #Ad enough: ASA says "LA, LA, LA we're not listening".

Incidentally, if that influencer had used #Affiliate to disclose these affiliate voucher codes, the ASA would STILL have upheld because they don't like that label either - the ASA was clear she should have used #ad, otherwise social media users would have no clue it was an ad...

Latest decision is 'head and shoulders' above the rest

Now, the ASA has doubled down on their position, while making that opaque line even harder to find.

In relation to three pieces of social media content by Erim Kaur, promoting her By Erim shampoo and conditioner. None of them included #ad. The ASA upheld against two of these piece of content, and didn't uphold against one.

• The first Instagram Story, seen on 19 September, featured an Instagram Reel from the @byerim account. The story included super-imposed text that stated “It’s officially out there. We did it. 100% naturally derived”. The reel, which played in the story, included small text in the bottom left-hand corner that stated ‘byerim’, and began with fast moving clips of product packaging showing the percentage of natural ingredients that they contained. The reel then showed large text that stated “100% NATURALLY DERIVIED”, followed by a clip of a woman washing her hair in the shower with text that stated “VEGAN” and “CRUELTY FREE”. The reel then showed the text “BYERIM LUXURY SHAMPOO” faded in the background and the superimposed text “COMING SOON 30.09.22”. The story included a link to “Watch full reel”.
• The Instagram Post viewed on a desktop, posted on 20 September, featured a video showing clips from a photoshoot for “ByErim”. The video began with a clip of a woman pushing a suitcase and superimposed text that stated “What it’s *really like* shooting a campaign for your own brand [eyes emoji]”. Later in the video there was a clip of two women lying down with bottles of BYERIM placed on their hair. The video was accompanied by a voice-over that stated, “Have you ever wondered what it’s like being on set with me? No, nor has anyone else, but I’m gonna [sic] tell you anyway. Presents. Food. Invasion of personal space. But you know what we get stuck in there, we’re hands on. So hands on that I actually bought a microscope and microscoped [sic] everyone's head just to check the before and afters of the shampoo and conditioner. Lots of selfies guys. You guys can imagine we had cameras galore on this set. Speaking of which I was crawling underneath them. I’m looking at this now and I’m wondering why I didn’t go around, but, we move. Of course, filmed a few TikToks because I love the dances. And I brought my polaroid which was such a good idea.” The post included the caption “It’s me crawling under the tripod for a better look for me @byerim shampoo & conditioner launching 30 sep […] #shootbts #photoshootlife #modellife #smallbusiness #femaleceo”.
• The second Instagram Story, seen on 29 September 2022, featured an Instagram Reel from the @byerim account. The story included super-imposed text that stated “Coming this Friday @ 6pm”. The reel, which played in the story, included small text in the bottom left-hand corner that stated “byerim”, and featured a woman washing her hair in the shower using BYERIM products. The video included text that stated “CARE”, “FOR”, “YOUR”, “CURLS”, “LIKE”, “NATURE”, “INTENDED”, “100% NATURALLY DERVIED”, “COMING THIS FRIDAY”, “30TH SEPTEMBER” and “BYERIM.COM”. The story included a link to “Watch full reel”.

The ASA decided that:

• Instagram Stories (a) and (c) were misleading because they were not obviously identifiable as 'ads'
• Instagram Post (b) was not misleading, because it was obviously identifiable as an 'ad'

You can read the full ruling here, where the ASA explains its rationale, but ultimately it seems we are dancing on pin heads here.

Where is it all going wrong?

Ultimately, it seems that the ASA is much more sceptical over fleeting, ephemeral content, such as Instagram Stories, and influencers need to make sure their disclosure appears very clearly, prominently and right at the start of the content. If you leave out a disclosure on the assumption that it's pretty clear from the content you are promoting your own, clearly branded products, and using words like "Buy it now", or "Shop now", you're rolling the dice. The ASA might still think it isn't obvious enough!

So, for now, all I can tell you is that it's best to include a disclosure, and the disclosure can take whatever form you like.. as long as it's #AD.

As an alternative, you could rely entirely on the platform's own labelling tool.

There's a slight wrinkle: while many social media platforms have introduced their own disclosure/label for 'commercial content', none have opted for 'Ad'. Some have gone for 'Sponsored', some have gone for 'Paid Partnership', etc. Interestingly, neither of these would have been acceptable as a catch-all label or hashtag to describe all kinds of commercial communication based on the ASA and CMA's own guidance... but as platform tools, the ASA seems reasonably comfortable with them.... for now!

All we know based on the ASA's formal rulings is that the ASA hasn't yet pursued influencers who have used a platform tool while omitting #ad.

Side bar

Underpinning all of this is a deeper issue. The ASA uses the word 'advert' in a way that I don't think consumers and others use it. In a social media context, the ASA uses the term 'advert' or 'ad' to mean any communication that is in any way 'commercial' in nature. As I've said before and I'll say again: not every 'commercial communication' is an 'advert'! So it's frankly not ideal that the regulators think in those artificial terms, and it's confusing and unhelpful when the regulators force influencers to describe every type of tenuously commercial communication as an 'ad' when the truth is much more nuanced! Removing nuance doesn't always result in simplicity, the removal of nuance is sometimes much less helpful than that!

Roll on the updated guidance.