Sweeping New Changes to Influencer Advertising
About the Authors:
Charlotte Henley
Partner at Dentons Kensington Swan
Charlotte is a partner and co- leader of our intellectual property team. She helps clients identify, protect and commercialise their intellectual property, and resolve IP disputes.
Hayley Miller
Partner at Dentons Kensington Swan
Hayley is a commercial lawyer with a particular focus on technology and innovation. She has developed a multi- disciplinary practice which is often at the intersection of technology, privacy and consumer law.
Jenni Rutter
Partner at Dentons Kensington Swan
Jenni is a partner and co-leader of our intellectual property team. She has over 20 years’ experience working both here and abroad to develop, protect and commercialise their valuable IP assets.
If you engage influencers – or even just provide free products and services to influencers – from Monday 14 September 2020, the Advertising Standards Authority’s (ASA’s) new influencer guidance will apply to you.
The ASA’s new AdHelp Information on influencer advertising introduces new requirements that apply to all ad content from 14 September 2020, including a broad range of influencer content. AdHelp Information is available at www.asa.co.nz.
Key take-home points
The key points are as follows:
The ASA’s definition of ‘ad content’ is broad, and includes content containing affiliate or discount codes, and content about gifted products or services, regardless of whether or not the advertiser requires the influencer to post content or has any control over the content of the influencer’s posts.
When a label needs to be used to identify ad content, the ASA recommends using either ‘Ad’, ‘Advert’, or ‘Advertisement’, which must appear at the first interaction customers have with the content.
Influencers can choose to include additional labels (such as ‘Gift’, ‘Gifted’, ‘Free Trial’, or ‘Working With’), but these must be used both in addition to and following the above recommended labels. Using #Gifted in isolation will not be sufficient.
Every post, or segment of a story, that includes ad content must be identified using the recommended labels.
What not to do
Businesses should also be aware of the ‘common mistakes’ identified by the ASA, in respect of the labels used by influencers to identify ad content, which provide an indication as to what the ASA will be looking out for. These common mistakes include:
Label isn’t sufficiently obvious, for example, it is too small, appears below the first screen visible to users, is one of many labels or hashtags, or is in a colour that doesn’t sufficiently contrast with the background colour.
Label is only voiced and not heard when consumers have their sound off.
The content directs consumers to another post or story to obtain clarity about what is ‘ad content’.
Practical tips
Every party to an advertisement – including the influencer, advertiser, and any agents – will be on the hook for compliance. This means:
For advertisers, given the specificity of the ASA’s requirements, and breadth of their application (including for gifted products), it will be important to ensure that you communicate clear terms to any person to whom you provide free or discounted products or services, and require that person to identify any content they post about the product or service using one of the labels recommended by the ASA.
For influencers, the ASA’s guidelines will likely mean a pivot away from ‘native advertising’. It will be important to communicate with advertisers about your obligations when posting content and avoid a ‘middle ground’ of compliance where the labels you use are purposefully discrete (for example, ‘see my story for outfit details’). Avoid abbreviations like #sp or #collab.
For agencies, it will be important to ensure that both the influencer and the advertiser are clear about their respective obligations. We expect to see more advertisers requiring agencies and/or influencers to sign agreements prior to sending products or services, even for relationships that are not ‘long term’ or involve monetary payment.
The nature of the changes introduced by the guidelines means that it will be important to clearly understand your obligations, including by getting legal advice.
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