Teal blue header image

Avoiding both irresponsible and misleading influencer marketing

We are all aware of the influx of influencer-based advertising over the past few years, and the increased use of social media channels to help establish and promote a brand.

Sponsored posts have informally been used for many years, but regulation in this area is finally getting up to speed.

We have recently seen the ASA crack down on what they refer to as ‘misleading advertising’, and outline how influencers need to be clear when uploading posts of a promotional nature. More recently, there have also been developments in influencer marketing where brands have received complaints in relation to ‘irresponsible advertising’. Many are asking the all-important questions: what is the difference between misleading and irresponsible, and what should I be doing to protect my brand? 

Recent rulings 

The ASA has made two rulings in this area over the past few weeks, which seek to identify what could be classed as ‘irresponsible advertising’. 

Ruling 1: Protein Revolution 

Posts in relation to ‘weight loss gummies’ were featured on the Instagram pages of Team v24 (promoting their own product) and Georgia Harrison (a TV personality). Both posts emphasised the fact that the gummies could suppress hunger cravings, and support weight loss, and Georgia’s post was accompanied by an image of her promoting in athletic clothing, modelling ‘the perfect body’. 
Whilst the post was advertised as a ‘paid partnership’, and arguably not misleading in that sense, the ASA took issue with the fact that both posts did not contain the relevant nutritional information required, and also promoted a diet product in an irresponsible manner. They noted that Georgia’s post was accompanied by an image that was most likely edited and did not represent her real body shape, but that would be aspired to, by those following her profile. 

Ruling 2: Boombod

Posts in relation to BoomBod’s weight loss products  were uploaded onto BoomBod’s own Instagram account, as well the accounts of Lauren Goodger and Katie Price. The ASA concluded that the claims in the adverts did not accurately reflect the relevant health claims and were therefore in breach of the CAP Code. 

The ASA also took issue with the fact that the posts stated  the products had made the users feel more confident, suggesting that if you are slim and you use these products to suppress your appetite, then this will also improve your confidence. This was again deemed irresponsible advertising. 

In light of these rulings, what should brands, and their influencers, be aware of when promoting? 

  1. It’s time to weigh up ‘what you can get away with’ vs potential reputational damage. There are currently no financial penalties in relation to upheld advertising complaints, so arguably the damage to be done here is to your brand’s reputation. Consumers, now more than ever, are becoming increasingly concerned with the social responsibility of the brands they engage with, and honesty and transparency are now key expectations.

  2. Consider your legal compliance. Just because your posts/your influencers’ posts are clearly labelled as ‘ads’, this does not then give you free reign to post without further consideration. Whilst your ad may not be misleading in that particular sense, it needs to meet this responsibility threshold in order to avoid complaints and ultimately removal. There is a real need for retailers and their associated brands to re-evaluate their marketing strategies, and potentially take a firm line approach on some of the more contentious areas of advertising such as weight loss claims.

  3. Be aware (more than ever) of your audience. Health, beauty and fashion related content is only going to continue to be subject to intense scrutiny, given the increasing link between social media usage (in particular; Instagram) and wider self-esteem issues. Brands will be expected to think about the audiences that their influencers are reaching, and acknowledge that they have to exercise a level of care towards these users not to promote an unattainable image/lifestyle. 

Contributor: Emily Broderick

If you are an influencer or brand and wish to discuss any aspect of this article, influencer marketing or sponsorship and brand campaigning more generally, please contact Susan Honeyands (Partner), Lisa Urwin (Legal Director) or Duncan Reed (Partner). 

For more information on how the ASA classify ‘celebrities’, please click here

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2019. Specific advice should be sought for specific cases. For more information see our terms and conditions.

Insights & events View all