So, you or your company can and do use influencers or celebrities to promote your products and services and drive-up sales, but you (and they) need to think about a few key points before you or they start posting.
As is now well established, bloggers, influencers and social media personalities can of course usually influence consumers by creating a buzz around a product. It has now been clearly established though that you need to be sure that you are not misleading your audience in any way.
You must be very clear that wherever an influencer has been paid or provided with an incentive to post ads, endorsements, sponsorships, competitions, prize draws, discount codes, own brand promotions or product placements or indeed reviews (including those about gifts received) they all need to be clearly labelled as an advert. It is important to note that this applies to both formal agreements, such as written contracts, and equally to less formal situations including verbal agreements.
It is vital to comply with the rules because otherwise you could undermine or devalue a valuable brand by being seen to flout the rules. If you do not follow the rules, you or your company are very likely to be in breach of consumer protection law and also breaking industry rules on advertising. You should therefore use labels that are clear on their face to show that content is an ad or advert, and do not try and dress that up as anything else.
So, what about influencers who either own their brand or co-own it and use social media accounts to promote their products – how does the law apply to them?
The key case here was the ASA ruling on Prettylittlething.com Limited where the ruling was made in July 2022.
In short, an Instagram story from influencer Molly-Mae Hague’s account showed her wearing a long brown dress. There is then text which stated, “You can actually shop it now on PLT – Couldn’t not make it available for you guys too”, and this was then followed by a link to the website “PRETTYLITTLETHING.COM”. The complainant who took up the case with the Advertising Standards Authority challenged whether the ad did not make clear its commercial intent.
In this case Prettylittlething.com Limited confirmed in its response that Molly-Mae Hague was indeed Creative Director at Prettylittlething and that a contractual agreement existed between those two parties, including a requirement to comply with applicable laws and regulations relating to marketing and advertising. Prettylittlething.com Limited understood that the disclosure had been omitted by mistake.
The thrust of the ASA finding was that the ad must not appear again in the form complained of and Prettylittlething.com Limited and Molly-Mae Hague were both told to ensure that their future ads were clearly identifiable as advertisements.
There are in fact lots of rules that might apply to the situations depending on the particular circumstances, but you certainly need to pay particular attention to the UK Code of Non-Broadcast Advertising and Direct & Promotional Marketing (the CAP Code) and the Consumer Protection from Unfair Trading Regulations 2008 (CPRs).
Written by: Nicola Gonnella and Dominic Green, partners at national law firm, Weightmans
Are you interested in this topic? How to break moulds and influence them, the lunchtime talk at #LIFI24, features a chat with Grace Bevelrey, hosted by Daniela Draper.
