To Declare Or Not To Declare: Our Guide To The ASA And CMA Regulations


To declare, or not to declare: that is the question...

The conversation around advertising transparency on Instagram has been an ongoing one, with the ASA (Advertising Standards Authority) dominating the conversation in the UK for years now - as discussed in our 2018 article, ‘#AD: The Definitive Guide to Ads on Instagram’.

However, in recent days the CMA (Competitions and Markets Authority) have entered the fray with the aim to set out clear points, regulations and (possible) punishments... eek! - (As their recent article outlines)

All this has got everyone understandably freaked, so we thought we’d wade in and try to make some sense of this…. situation.

Different Areas, Separate Rules

Before we enter the ring, it is crucial to stress that these changes are exclusive to the UK, therefore are not applicable across Europe, the US, Asia or any other major markets. Recognising the geographical differences are essential for both creators and brands alike.

For instance, many of us are aware that Germany has already implemented strict rules over the influencer ad space. Essentially, in their eyes, as an ‘influencer’ the very nature of your content influences consumers branded decisions - meaning that virtually all content has to be declared as communicating commercial intent.

So What About The UK?

#Ad

If you are under any obligation to share content for a brand, then this is an #Ad all the way. It’s as simple as that.

When sharing your work under an obligation to a brand, you must clearly label #Ad (preferably at the beginning of the caption) regardless of whether the brand has had creative input or not.

This is something Whalar has been championing for the last three years and can be found in our T&Cs. The difference is now, the CMA are tightening the screws.

#Ad, #Gifted, #Confused?

If a brand gives you a product or service without any obligation to share content on your social channels, and you then proceed to share of your own volition, then this is #Gifted.

In these situations, it’s important to remember that the new guidelines should actually help to validate your work and support you in receiving financial compensation when negotiating collaborations.

Timing Is Everything

Here’s where things begin to get complicated…

Following the above rules, if you have shared an #Ad or #Gifted post, the CMA’s guidelines now state that you are obliged to declare all future content featuring the previously advertised or gifted product, or service, within 12 months of the initial collaboration.

And to make matters even more complicated…

If you purchase a product or service from a brand that you have had a working relationship within the last 12 months, you must also declare all content featuring these items or experiences.

Potential Issues Moving Forward

We’ve always promoted authentic partnerships between our brands and influencers, and now, ironically, if the CMA’s new guidelines are implemented properly, these relationships could turn on their heads.

With the legal obligation to declare branded relationships for 12 months from the point of posting, a brand that an influencer really likes may now turn out to be the last one they’d actually want to collaborate with.

For instance, if you choose to do a campaign with your favourite high street brand, say H&M, then it’s quite likely you’re going to buy something from them of your own volition in the following twelve months. In this situation, you would now have to declare your previous work with the brand, even if you’re sharing something completely and utterly irrelevant to that campaign. You’re effectively tying yourself into a 1-year contract with all subsequent products from that brand.

Of course, at first glance this could all be seen as restricting the freedom of influencer marketing, however, these new rules may also enable us to harness brand ambassadorships for influencers and potentially give them more financial security for longer periods of time. Whether this plays out as a positive or negative, only time will tell.

Conclusion

When creating content, be as transparent about your intentions as possible; Always protect yourself and your work. Read industry articles and keep up to date with the content Whalar shares to support our influencers. We’re here to be as helpful and informative as possible, so if you have any queries or worries, don’t hesitate to contact us at hello@whalar.com.

And remember, creativity will always shine through so don’t let the rules get you down.

Words by Emily Freda Sharp and Will Rix