The Committee of Advertising Practice (CAP) is responsible for setting the standards for advertising, which are enforced in the UK by the Advertising Standards Authority (ASA).
CAP’s code of practice (CAP Code) sets out the rules for non-broadcast advertisements, sales promotions and marketing communications.
CAP recently issued guidance to clarify the CAP Code’s application to online ‘affiliate marketing’, whereby an affiliate is rewarded by a business for each new customer attracted by their marketing efforts, usually with a pre-agreed commission. Affiliates typically place ads and links online that direct consumers to the website, products or services of the business.
The CAP Code requires that all marketing communications are obviously identifiable as such, and they make clear their commercial intent, if at all unclear. The Code also provides that marketing communications must not falsely claim or imply that the marketer is acting as a consumer.
Some forms of affiliate marketing will be obviously identifiable by their form, e.g. website banner ads or branded emails. The difficulty, however, lies in social media, where it may not be clear that the author posting the content has a commercial relationship to the products or services being promoted, particularly where the individual is primarily a creator of non-commercial content and appears to have editorial independence. In such cases, some form of additional disclosure is likely to be required to ensure that the affiliate content is obviously identifiable as a marketing communication.
Drawing from various ASA rulings, the guidance includes recommendations for making affiliate marketing, if not otherwise clear from the context, obviously identifiable as marketing, in different scenarios such as:
- Social media posts (particularly Facebook, Instagram and Pinterest); and
- Voucher sites.
The guidance provides a useful reminder that the business and the affiliate marketer are each responsible for compliance with the CAP Code. Both affiliate marketers and businesses which make use of affiliate marketers will need to be familiar with the guidance and take steps to ensure compliance.
A copy of the guidance can be found here: https://www.asa.org.uk/advice-online/affiliate-marketing.html