Last week the ASA banned more influencer posts including posts by Katie Price with before and after pics of her looking slim in both, with wording which included "Quick & Easy weight loss…give[s] results EVERY time!"

For once, the main issue was not transparency or identification of posts as marketing communications, but rather breach of rules relating to making health and nutrition claims and also more generally around the sense of responsibility to consumers and society. The ASA explicitly noted that the influencers were already slim and presented as aspirational figures and as such the messaging around the benefits of quick dieting were particularly irresponsible. (The adjudications can be found here and here.)

This is a common sense decision and thankfully platforms are also now assisting with tackling posts of this nature with policy changes. For example, Instagram announced a new policy in September 2019, which also applies to Facebook, the owner of Instagram. As a result, any content making a "miraculous" claim about a diet or weight-loss product that is linked to a commercial offer is prohibited and will be removed by the platforms. In addition posts promoting the use of certain weight loss products or cosmetic procedures and containing either an incentive to buy or a price must be targeted at over 18 years olds and hidden from users known to be under 18. (See section 4 (Prohibited Content), subsection 31 (Misleading claims) and section 5 (Restricted Content), subsection 13 (Weight loss products and plans)  of Facebook's ad's policy available here.) Examples of prohibited misleading claims include "Claims of unrealistic results within specific timeframes" so the above claims would be caught and presumably removed under the new policies.

But where are we with labelling of posts?

Recent research, published in September, conducted by Ipsos MORI, (available here) and a subsequent report issued by the ASA (available here) aimed to shed some light on the ability of social media users' to identify adverts and their understanding of the labels that are commonly used in influencer advertising.

The findings show that the wide variety of labels used, their placement and their visibility impede social media users' ability to identify advertising. Therefore, the ASA reflected that as a minimum advertising content must:

• say "ad" - the research indicates that the term "ad" is the clearest way of conveying that the post is an advertisement:

The labels "ad", "advert" and "advertisement" all featured as terms that participants were most familiar with, whereas they were unsure of the meaning of the terms "sp", "gifted", "spon", "affiliate" or "collab" (some participants even felt "collaboration" was deceptive in some cases).

• be prominent - any label needs to have a prominent position in the post according to the research:

Where posts incorporated the hashtag "#ad" into the middle of a series of hashtags, participants were no more likely to identify that post as an advert than if the post had no label at all.

Additionally, given that platform-led partnerships (for example Instagram's "paid partnership" feature) were seen to be the most intuitive labels and gave a sense of officiality to participants of whether a post is advertising content, notwithstanding that the ASA has not confirmed definitively the effectiveness of platform tools on their own, using these additional tools can only be a good thing.  

Does the research and findings make things clearer?

Unfortunately where we seem to have landed is that #ad/advert/advertisement is/are the most effective labels. There are no other labels that have been recommended.

In a previous blog post here, I noted that there is a lack of guidance in relation to situations where there has been "payment" e.g. the giving of a freeie, but there is no "control" by the brand over the social media post i.e. such that it is not an "ad" and not regulated by the ASA, but which is regulated by consumer protection rules and falls within the remit of the CMA.

In the absence of any further guidance, it seems that the stance remains that "Advertisement Feature" or "Advertisement Promotion" should be used in this situation, even though  the post is not an ad and, therefore, arguably, this is not an accurate reflection of the situation where a brand simply gives a product or service away for free and someone decides to write about it.

The ASA will now consider the outcomes of the research and report, and has said that it will follow up on the themes and issues raised by the research, target parties involved in influencer advertising to ensure they follow the rules and share its findings with other regulators.

Accordingly, whilst the much awaited research is now available, we are still some way off from a concluded position on labelling.