A reminder from the ASA yesterday that they will look at influencer advertising not only to check that it is clearly identifiable as an ad but also to assess whether the content complies with the other advertising rules.

Laura Whitmore’s recent TikTok and Instagram ads for The Muff Liquor Company have been banned. Why?

  1. Disclosure

Whitmore is a shareholder of The Muff Liquor Company and while the content in her ad was not contractually required nor was she paid for her posts, she did have a commercial interest in the continued sale of these products and so, the content was a marketing communication. Unsurprisingly   “#muffboss” and “#irishowned” were not deemed sufficiently clear identifiers of her commercial relationship with the brand - a breach of the CAP Code.

  1. Minors

The ASA concluded that the TikTok version of the ad was likely to be highly visible to minors. As a Love Island presenter, Whitmore is known and followed by a lot of under 18s. In addition TikTok’s advertising policy prohibits ads for alcohol and so there is nothing on the platform to prevent minors viewing this type of content. These two factors together meant that placing the ad on TikTok showed insufficient care by Whitmore to ensure the ad was not directed at minors - a breach of the CAP Code.

  1. The effect of alcohol

The ad itself showed Whitmore drinking 4 different drinks, two were alcoholic. On drinking the alcoholic drinks Whitmore was shown to be more animated, confident and enthusiastic. The associated music and captions all led the ASA to the conclusion that the ad encouraged irresponsible drinking, implying alcohol could enhance confidence and change your mood - a breach of the CAP Code.

We often see contracts with influencers and brand ambassadors that focus on the requirements around ad disclosure. While this is clearly an essential piece of the puzzle, the other CAP Code rules are often overlooked.

Where the content relates to certain categories of product or is directed towards certain categories of people, the CAP code has other specific rules that must be followed. These categories and products include:

    • ads directed at children;
    • ads which could infringe on another person’s privacy (for example by referring to a person with a public profile);
    • political ads;
    • ads which contain competitions, prize draws or other promotional marketing;
    • ads containing environmental claims;
    • ads for medicines, medical devices, health related products and beauty products;
    • ads for weight control or slimming products;
    • ads for financial products;
    • ads containing health and nutrition claims; and
    • ads relating to gambling, alcohol, tobacco or e-cigarettes.

Make sure your ads don’t pass the first hurdle of disclosure and then fail on the subject specific rules. When contracting with influencers make compliance with all these requirements mandatory and, where subject specific rules are likely to apply, give influencers and ambassadors guidance notes on the additional rules.