Advertising Standards Authority rules – debunked

Recently, some big brand names and content creators have come under fire for breaches of marketing and advertising rules on social media, the question is WHY?

The Advertising Standards Authority (“ASA”) and the Consumer Marketing Authority (“CMA”) work in tandem to regulate advertising online and consumer protection. Social media and the digital space have become an arena for people to share their views, passions and, for many, it has become a career. We’ve all seen that the possibilities are endless, one TikTok can create a viral trend, one video about an experience with a brand could sink reputation and one re-post could change someone’s life.

The purpose of this article is to simplify the ASA’s rules and make it easier to ensure that we are on the right side of the laws on advertising.

On 23 March 2023, the ASA issued advertising Guidance for Influencers to make clear that ads are genuine ads. The Guide is comprehensive however, for ease we have summarised these for you:

1. The duty of disclosure – an influencer/content creator has a duty to disclose when they are receiving a payment or an incentive from a brand, the most common way to do so is by using the hashtag: #ad.

2. An incentive from a brand – this includes a brand ambassadors, having rights in the organisation, being an owner, receiving a discount or obtaining free products/goods/services.

3. If a content creator has an affiliate relationship, it has to be recognised on their profile using the hashtag: #ad.

The ASA’s Guidance requires influencers and content creators to use specific labels to avoid falling foul of these advertising rules. The rules apply to any type of online marketing content, to include stories, TikToks, reels and even emails.

So even though the rules are extensive, and the Guidance is detailed, why have so many brands and influencers fallen foul of the rules? Recently, and specifically, Grace Beverley, CEO and Founder of activewear brand We are TALA Ltd t/a TALA (“TALA”), found herself in hot water with the ASA for breaches of the advertising rules.

Ms Beverley posted two reels on Instagram and four TikTok’s in relation to the release of TALA’s new clothing line. Reports were made to the ASA that these posts had not complied with the ASA’s rules and are classified as marketing communications.

Her team submitted that Ms Beverley’s consumer base and following online would lead to the conclusion that she was synonymous with the business and its branding. The basis for the argument was that all the posts indicated that there was a clear commercial relationship between the Ms Beverley and TALA.

On 22 May 2024, the ASA held that Ms Beverley and TALA were in breach of the ASA’s rules. The ASA had the following considerations:

1. Relationship between the parties – Ms Beverley is employed by TALA as an employee and is remunerated as an employee. There is a commercial relationship with the brand which constituted marketing communications;

2. Contents of the posts – the words used in the Instagram reels were deemed to be ‘aggressive marketing’ and the phrases used were not sufficient to constitute ads that were identifiable;

3. The co-publishing feature on Instagram / TikTok is not sufficient to displace the requirement for content to be clearly identified as an ad;

4. We cannot assume that users online will draw a link between the owner of a business and the business itself.

TALA’s brand continues to grow but the ruling comes as a groundbreaking precedent in the advertising world.

If you are starting out in this space, whether it be advertising via affiliates, promoting your brand or growing a customer base online, be sure to remember the following: disclose all relevant details in the right way!

Be sure to follow @km__dhrutishingadia on Instagram and @kaurmaxwell on TikTok for more commentary about the ASA’s rules and recent rulings that we all should be mindful of!

We’d love to hear your thoughts.

If you have any queries about the ASA Rules, please do not hesitate to get in touch with our specialist team by telephone on 0207 052 3545 or by email info@kaurmaxwell.com

This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice.

Please contact KaurMaxwell for advice before taking any action in reliance on it. 

By: Dhruti Shingadia