#NoFilter: The UK’s New Mandate on Social Media Influencer Endorsements

By Tessa Mallett

Today, it is commonplace for brands to advertise on social media by having influencers promote products on their profiles in return for compensation.[1] Influencer endorsements pose unique legal concerns, and the United Kingdom (UK) has taken an aggressive approach to resolve these issues.[2] Earlier this year, the Advertising Standards Authority (ASA), the agency which enforces the UK’s advertising laws, passed a novel ruling; it held that influencers cannot use filters on posts that are advertisements if they would be misleading to consumers.[3] This blog post examines the ruling and briefly discusses some issues the ASA faces in attempting to regulate influencer endorsements.

The UK employs a “self-regulation and co-regulation” process to regulate its advertisements.[4] For self-regulation, the Committee of Advertising Practice (CAP) creates the codes the advertising industry must follow and funds the regulatory system.[5] The UK Code of Non-Broadcast Advertising and Direct & Promotional Marketing (CAP Code) applies to social media advertisements.[6] The ASA is the co-regulation aspect of the process, enforcing the codes by investigating possible violations and sanctioning noncompliant companies and influencers.[7] The ASA rulings have general applicability, meaning they apply to all individuals who post advertisements on social media.[8]

Typically, The ASA is alerted to a potential breach when an individual submits a complaint on its website.[9] In late 2020, UK influencer Sasha Pallari contacted the ASA about the use of in-app filters on promotional posts.[10] Earlier that year, Pallari created the #FilterDrop campaign on Instagram to raise awareness about the use of filters and how they can effect one’s mental health.[11] Another goal of the campaign was to compel individuals to disclose when they were using filters on posts that endorsed cosmetic products.[12] Consequently, she voiced her concerns to the ASA, stating that the use of filters on such posts could give consumers false expectations about their effectiveness.[13]

Pallari also included examples of influencers and companies using filters on promotional posts, and the ASA ultimately investigated two of them.[14] In February 2021, the ASA published rulings regarding those two instances.[15] In the first case, influencer Cinzia Baylis-Zullo posted videos on her Instagram profile where she endorsed the We Are Luxe tanning face and body drops.[16] Bayliz-Zullo had added a filter to the videos, which gave her “slightly darker skin, [] freckles, and [a] smoother complexion.”[17] The influencer stated the drops had improved the look of her skin and added in the video’s caption that it was an advertisement.[18]

In the second proceeding, the company Skinny Tan reposted influencer Elly Norris’s Instagram stories where she claimed to be wearing no make-up and credited the brand’s tanning product for her skin’s appearance.[19] Like Bayliz-Zullo, Norris used a filter for the posts, which darkened her skin tone, and disclosed it was a paid endorsement.[20] However, Skinny Tan neglected to disclose that it paid Norris to promote the product.[21] In both cases, the issue was whether the filters “exaggerated the efficacy of the advertised cosmetic product” and consequently were misleading.[22]

The ASA published identical rulings for the cases. The agency held the influencers and the companies sufficiently disclosed that the posts were advertisements, but the use of filters troubled the ASA.[23] It explained that though it does not believe it is inherently wrong to use such filters, influencers endorsing “cosmetic products need[] to take particular care not to exaggerate or otherwise mislead consumers regarding the product advertised.”[24] The ASA held that the influencers crediting the products for their skin’s appearance would lead consumers to “expect to experience similar results.”[25] Further, while there was text at the top of posts to notify consumers a filter had been added, it could still mislead them about the effectiveness of the product.[26]

Thus, the ASA held that both posts “misleadingly exaggerated the results the product could achieve.”[27] As such, they violated sections 3.1 and 3.11 of the CAP Code.[28] Section 3.1 mandates that advertisements “must not materially mislead or be likely to do so” and section 3.11 prohibits “mislead[ing] consumers by exaggerating the capability or performance of a product.”[29] The ASA required that the influencers and the companies remove and not repost the advertisements.[30] Furthermore, that they cannot use filters on promotional posts if they would mislead a consumer about a product’s efficacy.[31]

This recent ruling demonstrates the ASA’s dedication to ensuring influencers are transparent about their endorsements. Yet, despite the ASA’s efforts to regulate social media advertisements, an alarming number of influencers still flout the regulations.[32] In 2020, the ASA monitored the Instagram accounts of 122 UK influencers for 3 weeks to determine the rate at which they were complying with the CAP Code.[33] The ASA found that “while nearly a quarter of the [24,000] posts [it monitored] were ads, only 35%” disclosed adequately disclosed they were advertisements.[34]  The ASA’s Chief Executive, Guy Parker, stated that noncompliance would lead to “follow-up monitoring and preparing for enforcement action.”[35]

While it is likely that many, if not most, of the monitored influencers consciously decided to forgo the ASA’s regulations, it is likely that several were confused about how to comply. Those within the legal field have criticized UK’s advertising laws for being difficult to comprehend, especially when it comes to what constitutes adequate disclosure.[36]  To lessen confusion, and increase compliance, the ASA and CAP have published additional guidance on how to follow the regulations.[37] The ASA also regularly publishes articles on its website that discuss topics influencers may have trouble understanding.[38]

The ASA’s recent ruling will better protect consumers and ensure that influencers are being honest when it comes to promotional posts. Based on the 2020 study it conducted, the ASA will have to continue to closely monitor social media advertisements and investigate complaints of potential violations. However, the ASA’s dynamic approach to such regulation demonstrates that it is capable of responding to such issues.

 #Blogpost #UK

[1] Courtney Carpenter Childers et al., #Sponsored #Ad: Agency Perspective on Influencer Marketing Campaigns, 40 J. of Current Issues & Res. in Advert. 258, 258 (2019).

[2] See generally U.K. Government Planning New Regulation of Social Media Companies, PBS (Feb. 12, 2020), https://www.cbsnews.com/news/uk-government-plans-to-regulate-social-media-companies-to-prevent-spread-of-harmful-content/.

[3] England and Wales: Advertising Standards Agency Rules Against Social Media Influencers Who Had Violated Advertising Laws, Libr. of Congress (Jan. 21, 2020), https://www.loc.gov/law/foreign-news/article/england-and-wales-advertising-standards-agency-rules-against-social-media-influencers-who-had-violated-advertising-laws/.

[4] Id.

[5] Self-Regulation and Co-Regulation, ASA, https://www.asa.org.uk/about-asa-and-cap/about-regulation/self-regulation-and-co-regulation.html (last visited Apr. 6, 2021);

[6] Remit: Social Media, ASA (Feb. 5, 2020), https://www.asa.org.uk/advice-online/remit-social-media.html. 

[7] Self-Regulation and Co-Regulation, supra note 5.

[8] See generally An Influencer’s Guide to Making Clear that Ads are Ads, ASA, https://www.asa.org.uk/uploads/assets/uploaded/3af39c72-76e1-4a59-b2b47e81a034cd1d.pdf (last visited Apr. 8, 2021).

[9] See Kristen Edwardine Shibley, United Kingdom Regulation of Gender Stereotyping in Non-Broadcast Media, 51 George Washington International Law Review 345, 352-53 (2019).

[10] Sasha Pallari, My #FilterDrop Campaign Changes the Rules Around Online Advertising in the Beauty Industry, Stylist, https://www.stylist.co.uk/beauty/instagram-beauty-filters-filterdrop-campaign-sasha-pallari/481160 (last visited Apr. 7, 2021).

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] ASA Ruling on We Are Luxe LTD T/A Tanoligist Tan in Association with Cinzia Baylis-Zullo, ASA (Feb. 3, 2021), https://www.asa.org.uk/rulings/we-are-luxe-ltd-t-a-tanologist-tan-in-association-with-cinzia-baylis-zullo.html [herinafter Baylis-Zullo Ruling]; ASA Ruling on Skinny Tan in Association with Elly Norris, ASA (Feb. 3, 2021), https://www.asa.org.uk/rulings/skinny-tan-ltd-in-association-with-elly-norris.html [hereinafter Skinny Tan Ruling].

[16] Baylis-Zullo Ruling, supra note 14.

[17] Id.

[18] Id.

[19] Skinny Tan Ruling, supra note 14.

[20] Id.

[21] Id.

[22] Id; Baylis-Zullo Ruling, supra note 14.

[23] Baylis-Zullo Ruling, supra note 14; Skinny Tan Ruling, supra note 14.

[24] Skinny Tan Ruling, supra note 14.

[25] Id.

[26] Id.

[27] Id.

[28] Id; Baylis-Zullo Ruling, supra note 14.

[29] The UK Code of Non-Broadcast Advertising and Direct & Promotional Marketing (2014), §§ 3.1, 3.11 (Eng.), https://www.asa.org.uk/type/capcode/code_rule/3.1.html?_vhid=2A1B77414F653D1902EEA9DB12FB16BD.

[30] Baylis-Zullo Ruling, supra note 14; Skinny Tan Ruling, supra note 14.

[31] Baylis-Zullo Ruling, supra note 14; Skinny Tan Ruling, supra note 14.

[32] Mark Sweney, UK Social Media Influencers Warned Over Ad Rules Breaches, The Guardian (Mar. 17, 2021), https://www.theguardian.com/media/2021/mar/18/uk-social-media-influencers-warned-over-ad-rules-breaches.

[33] Id.

[34] Id.

[35] Id. Because the ASA did not disclose which influencers it monitored, it is unknown whether it has since acted against those who violated the CAP Code.

[36] See generally Jane Wakefield, Social Media Stars Agree to Declare When They Post Ads, BBC (Jan. 23, 2019), https://www.bbc.com/news/technology-46960179.

[37] An Influencer’s Guide to Making Clear That Ads are Ads, supra note 8.

[38] Advice Online, ASA, https://www.asa.org.uk/advice-and-resources/resource-library/advice-online.html (last visited Apr. 8, 2021).