The ASA and CMA continue to police native advertising and influencer marketing.
Thanks to social media, the monetisation of native advertising and influencer marketing is proving lucrative for businesses wanting to boost sales and market share. Social media influencers (SMIs) have revolutionised marketing thanks to their ability to shape consumer behaviour, brand strategies and social attitudes. However, new research is starting to expose a different side to influencer culture, which raises ethical, psychological and regulatory concerns. This suggests that SMIs may pose psychological, health and safety risks and that tighter regulations are needed to mitigate the risk of misinformation, endorsement of dangerous/regulated products, deceptive advertising, privacy risks and potentially harmful ‘comparison culture’.
Influencer marketing law is complex, and the rules differ across the UK and Europe, but in the UK a blend of legislation and industry-led regulation and guidance applies:
- The ASA (Advertising Standards Authority) and the CMA (Competition and Markets Authority) publish guidance such as the Influencers’ Guide to make clear that ads are ads.
- New rules to combat unfair commercial practices (UCP) have been introduced via the Digital Markets, Competition and Consumers Act 2024 (DMCCA). These reinforce the importance of being clear when influencers are promoting products and services through paid promotions to help consumers recognise that they are seeing advertising. It should be noted that while the DMCCA has replaced the Consumer Protection from Unfair Trading Regulations (CPUT) with effect from 6 April 2025, the CPUT still applies to any conduct before 6 April 2025. The CPUT also remains relevant in terms of enforcement for the time being as consumers will not have a direct right of redress under the DMCCA until 2026.
- The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) applies to affiliate marketing and influencer marketing posts.
The ASA recently reported findings from its investigation into a random selection of influencer accounts throughout 2024, including accounts against whom complaints or sanctions had been made in the previous year and the 122 Instagram influencers included in its previous monitoring exercise. The report concluded that while there are some signs of improvement, the overall rate of disclosure at 57% is still below the level expected by the ASA.
To avoid finding themselves on the wrong side of the law advertisers should select affiliates, influencers and partners carefully. They should review the partner’s previous activity and regulatory compliance record, as well as the ASA’s webpage of non-compliant influencers. They should also assess the partner’s awareness of the rules.
If you have any questions relating to the guide or influencer marketing generally, please contact us at [email protected]
