14 April 2021
In a determination last month, the Ad Standards Community Panel (Panel) upheld a complaint that a well-known influencer, Anna Heinrich, did not clearly disclose her commercial partnership with clothing brand Runaway The Label.
In its determination, the Panel makes it clear that advertising content should not be disguised as user-generated content and must be clearly distinguishable as advertising. Simply tagging a brand is not sufficient to show that there is a commercial agreement in place between a brand and an influencer.
The determination serves as a reminder that, if you are a business using influencers to promote your products and services through social media, it is important that you require those influencers to use clear language in their post, such as #sponsored or #advertising, to ensure that the commercial relationship is made abundantly clear to consumers.
The advertisement considered by the Panel was an Instagram post on Ms Heinrich’s Instagram account, which included an image of her wearing a green dress which was supplied by Runaway The Label, with the text caption that stated “Turning my apartment into a Runway … Wearing @runawaythelabel”.
The complaints received
The complainants took the view that the post had a “lack of regard to Australian law” and had “no sponsorship transparency”. Runaway The Label did not respond to the complaints. Ms Heinrich’s Instagram post has now been updated to state “Paid partnership with runawaythelabel”.
Clearly distinguishable advertising
In assessing the complaints, the Panel considered section 2.7 of the Australian Association of National Advertisers Code of Ethics (Code), which reads “Advertising shall be clearly distinguishable as such”.
This case is the first to be upheld by the Panel since the rules on distinguishable advertising were tightened in February 2021. The previous version of the Code included a “relevant audience” test, which meant that influencer advertising could be found not to be in breach if it was likely that the influencer’s followers would be aware that a post was likely paid for, even if not explicitly stated.
The purpose of section 2.7 of the Code is to ensure that marketing and advertising content is not disguised as news, independent market research, user-generated content, private blogs or independent reviews.
This does not require a brand that creates content on its own Facebook or Instagram account to post any specific labels as it is clear the content is commercial in nature. However, where an influencer or an affiliate accepts payment or free products or services from a brand to promote that brand’s goods and services, the relationship must be made clear and expressed in a way that is clearly understood.
This means that influencers and affiliates will be required to use obvious tags such as #ad, #advert, #advertising, #brandedcontent, #paidpartnership and #paidpromotion. Labels that are less clear, such as #sp, #spon, #gifted, #affiliate, #collab, #thanksto, or merely mentioning the brand name (as Ms Heinrich had done) may not be sufficient.
The Panel’s determination
In determining that the post breached section 2.7 of the Code, the Panel considered that while some followers of Ms Heinrich may be able to recognise that the post was most likely advertising, the wording of the post and absence of any relevant hashtags meant the post was not clearly distinguishable as advertising material. The Panel considered that tagging the brand was not sufficient to clearly and obviously show there was an arrangement between the brand and the influencer.
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