Sports Q&A - What does the CMA's latest guidance on influencers mean for athletes?

What does the CMA's latest guidance on influencers mean for athletes?

This is a great question and, to be frank, there is not a completely clear answer. The Competition and Markets Authority (CMA) recently obtained formal commitments from 16 influencers they were investigating for breaches of the rules requiring that it be clear when their content is in fact advertising. The 16 influencers included singers, actors and social media stars but there were no athletes among them.

We can speculate on the reason for the CMA not publicly naming and shaming sports stars as part of this investigation. Either, athletes with their multiple endorsements (some direct, others through club/country relationships) fall into the "too hard" bucket, or, the CMA believes there is less danger of athletes misleading the public about their relationships with brands, given that it is well known that athletes are sponsored.

Having concluded their investigation the CMA has published guidance which makes clear the high hurdles which influencers are expected to leap to ensure that they disclose their relationship with brands on social media.

A few key points from the new CMA guidelines include:

• Disclosure is required when a brand/product/service is being promoted, reviewed, tagged, linked to or endorsed in any way if (i) there has been any payment from the brand, OR (ii) if the item/service in question has been loaned or gifted, even if the gift is an unsolicited freebie.Even if the brand has no control over the content of the post and/or has not contractually required any posts, a disclosure should be made. (Confusingly this differs from the requirements of the advertising industry's self-regulatory bodies, the CAP and BCAP Codes, which are enforced by the Advertising Standards Authority (ASA), rather than the CMA). The CAP and BCAP Codes don't require disclosure, unless there is some form of control over the post and/or the post is fulfilling a contractual obligation.
• Disclosure must be upfront and clear. In social media posts, the CMA recommends “#Ad”, or “#Advert”, upfront (i.e. at the start of a social media post) and not buried amongst other hashtags. The CMA guidance also specifically identifies a number of disclosures which are potentially confusing or which do not go far enough, including: “Thanks to …”, “#spon” and “#[brand]”. Importantly, an overall disclosure which only appears on a profile section of an individual’s social media page or feed isn’t enough, and it often isn’t enough to use the ‘Paid Partnership’ tool provided by platforms such as Instagram (in those instances, #ad is still needed too).

So what does this mean for athletes?

Without further sport-specific guidance from the CMA there are likely to always be grey areas, however here are some top tips:

• Ask, is the post promoting something or prominently featuring a brand, product or logo? Intent doesn't seem to be relevant when determining if something is promotional, so an objective analysis is required. For example, if a footballer is posting an image of scoring a great goal and the logos on the player’s kit are incidental and hard to make out, this is unlikely to be deemed promotional so a disclosure probably isn’t needed. However if the player selects a close up clearly showing his/her boot striking the ball, with the boot brand prominent, this is likely to be considered promotional (assuming the boots were given to them for free or as part of a sponsorship deal). In either of these two situations, if the player tags or includes a hashtag for their boot sponsor’s brand, a disclosure will definitely be required.
• If the post shows the athlete outside their ‘work’ (i.e. sporting) environment, a post which features a brand without an appropriate disclosure is more likely to be misleading. For example, take a racing driver whose team is sponsored by a brand of headphones. The driver posts an image of themselves on the beach, clearly wearing the brand’s headphones. Assuming the driver was given the headphones for free, they should make a disclosure. This is the case even if the driver has no contractual obligation to issue the post and doesn’t tag the brand.
• When athletes are promoting their own products, they still need to disclose. For example, if the athlete has invested in an energy drink brand, although they are not being paid for their endorsement, if they post a review of the product or images of them drinking it, they should disclose the relationship.

Given the huge variety of commercial relationships in sport we could come up with dozens of other examples. Each would need a careful analysis to determine whether a disclosure is required. If you are in doubt, feel free to give us a call!