The Competition and Consumer Protection Commission (CCPC) and the Advertising Standards Authority have today published fresh guidance for Irish influencers on the clear labelling of ads on social media.

The comprehensive and accessible guidance addresses paid promotion, items ‘gifted’ by brands or PR agencies, and the advertising of own-brand products and services.
The joint guidance has been developed following extensive research, including experiments with eye-tracking technology and a survey of 500 social media users. A number of influencers were also asked to review the new guidance and provide feedback to the CCPC.

Key points of the new guidance include:

• Use the hashtag #Ad
  • A number of different hashtags (#IWorkWith, #OwnBrand) are currently used by influencers to indicate advertising. For the avoidance of confusion, all commercial content should now be labelled #Ad (or #Fógra for Irish-language posts)
• Hashtags must be instantly visible to consumers
• Posts about own brands must also be labelled as advertising

Kevin O’Brien, Member of the Competition and Consumer Protection Commission, said:

“Our research found that consumers consistently overestimated their ability to identify influencer advertising. This guidance will support influencers to comply with their obligations under the law so that consumers know when they are being advertised to.

It is in everybody’s interest for influencers to be honest with their audience and transparent about their advertising. CCPC research found that many consumers felt misled after purchasing an item on the advice of an influencer, and that levels of trust in influencers generally are very low. Clear labelling benefits everyone.

It is an offence to mislead a consumer, and influencers who fail to comply with Ireland’s consumer protection legislation may be subject to enforcement action up to and including prosecution.”

Orla Twomey, Chief Executive at the Advertising Standards Authority, said:

“Consumers shouldn’t have to question if and when they are being advertised to – it should be instantly clear. The guidance takes account of developments in influencer marketing and provides clear and straightforward guidance for influencers and brands they work with, on how to correctly and clearly label and disclose advertising content on their social media channels, to ensure that consumers are not misled.

The Advertising Standards Authority published research earlier this year that revealed over half of those surveyed were bothered by both the lack of transparency in influencer marketing and not being able to distinguish content from advertising. These findings echoed similar results to that of the CCPC’s research last December, which reinforced the need for this joint guidance.

The fundamental requirement for any advertising to be identifiable as such has been in existence for over 40 years. This new joint guidance will continue to improve compliance in influencer marketing, and consumer awareness and understanding in this area.”

A programme of engagement is planned to ensure influencers are fully equipped to comply with their responsibilities under the law.

The publication of this guidance coincides with a review of influencer content conducted by the European Commission and national authorities, beginning today (Friday 27 October). More information is available at https://commission.europa.eu/news/commission-and-consumer-authorities-look-business-practices-influencers-2023-10-16_en.

NOTES

The CCPC published research into influencer marketing in 2022. The research revealed that almost 50% of influencer advertising was not labelled or tagged as advertising. Tags used were often vague and unclear, leaving the consumer in the dark as to whether the influencer had been paid to recommend a product or service.

The Advertising Standards Authority also published research in 2023 that stated that only one in 10 people have trust in what influencers post on social media and that over half of Irish consumers (56%) trust brand advertisements more than social posts by influencers.

Influencers in Ireland must label commercial content to comply with the Consumer Protection Act 2007 (the 2007 Act) and the Advertising Standards Authority’s Code.

Consumer Protection Act 2007

Influencers must make it clear if their posts are of commercial nature, or they could be breaching the law. This is because the 2007 Act bans certain commercial practices that are deemed to be unfair or misleading to consumers. Traders^[1] engaging in such practices may face enforcement action. The CCPC has a range of enforcement tools to ensure that consumer protection law is adhered to, including compliance notices, fixed payment notices, undertakings, prohibition orders and prosecution.

Even if you use the recommended advertisement labels, the post may still breach consumer protection law if, in the overall context, the post is false or misleading. The CCPC publishes these enforcement actions periodically in its online Consumer Protection List.

Advertising Standards Authority‘s Code of Standards for Advertising and Marketing Communications

The Advertising Standards Authority code requires that it is clear when content is a marketing communication. These rules apply to all advertisements including those created by influencers on behalf of brands.  The Advertising Standards Authority Code also has other rules which may apply to influencer marketing such as those related to substantiation for claims in ads, rules for health and beauty claims, protection of children, etc. The Advertising Standards Authority reviews complaints from any person or body who considers that a marketing communication may be in breach of its Code. The Advertising Standards Authority may also investigate issues identified through its monitoring programme. The outcome of these reviews can include a recommendation to remove or amend the post. The outcome may also be made available on the Advertising Standards Authority website and published in the media.

[1] Influencers may fall under the definition of ‘trader’ in the 2007 Act, irrespective of whether they act for purposes related to their own business or professional activity, or on behalf of a brand.