The ASA/CAP have released a post called: Affiliate yourself with the CAP Code this month. I have enclosed the text of the link below, but please have a look at the ASA/CAP site as there are lots of things of interest to anyone with an interest in Ethical Marketing.
In a world of never-ending touchpoints, it’s never been more important for consumers to know that what they’re looking at is advertising – and for marketers, that means making sure it’s clear before consumers engage with it.
What do we mean by online affiliate marketing?
Essentially, it’s a type of performance-based marketing where an ‘affiliate’ places ads, promotional codes, or links which direct consumers towards a company website. This process functions as a kind of virtual sales funnel, with the affiliate being paid a commission for the sales that result from the click-throughs. Importantly, the CAP Code applies to affiliate marketing, including when it appears on an affiliate’s own website and social media – so read on for some expert advice on how to ensure that your ads are obviously identifiable as affiliate ads.
Make sure your affiliate ads are obviously identifiable
Rule 2.1 of the CAP Code requires that marketing communications are obviously identifiable as such. The Code also states that marketing communications must make clear their commercial intent if that is not obvious from the context (rule 2.3).
To that end, some forms of affiliate marketing will be obviously identifiable, because of the nature of the medium in which they appear – for example banner ads, branded emails, ‘cashback’ websites or websites solely dedicated to the product or service promoted. However, marketers may have to work much harder to make any commercial intent clear in mediums such as social media, vlogs, blogs, and news sites.
Generally speaking, the most straightforward way to do so – if not otherwise clear from the context – is likely to be including an identifier, for example “Ad”, in the title of the blog or article in such a way that it is clear to consumers before they click through to or engage with the content.
Several articles on the MailOnline website (and their corresponding ‘teaser’ links from the homepage) were previously judged by the ASA Council to be advertising in their entirety, as they focused wholly on affiliate-linked products. Although the articles in question included a disclaimer at the top, the ASA nonetheless considered that the phrasing “may earn an affiliate commission” was ambiguous and confusing, because it suggested that there might be instances where an affiliate might not receive any payment when, barring errors in the administration of the affiliate arrangement, they would indeed receive commission for purchases made via the links (Associated Newspapers Ltd t/a MailOnline, 21 December 2022).
Similarly, a fashion blog was deemed to have breached the Code because it contained a number of affiliate links next to featured products, but none of this advertising content was clearly labelled with an identifier such as “#Ad” (Matalan Retail Ltd in association with TL Blog Ltd, 30 October 2019).
Social media influencers should also take care to ensure that any social media posts which include affiliate linked products/services/brands, should be obviously identifiable as advertising upfront. The ASA has previously ruled that an Instagram Story containing the standalone label “*affiliate” was not sufficient for the story to be recognisable as an ad, because it was partially obscured by the “swipe up” button, but also because the term “affiliate” itself was not widely understood by consumers (Asos.com Ltd, 22 April 2020). The ASA has also ruled that the label “a d/affiliate” was not sufficient due to the way in which “ad” had been presented (with a space between the letters) and similarly, that the label “#collab” wasn’t sufficiently clear, either (J Choo Ltd in assoc. /w Victoria Magrath, 30 November 2022; Charlotte Tilbury Beauty Ltd, 13 October 2021.)
Don’t forget to take care with the content, too
It’s important to remember that because affiliate marketing falls under the CAP Code, all the relevant rules will apply to the content. It therefore should not, for instance, materially mislead consumers or cause serious or widespread offence.
Advertisers should also bear in mind that allowing their affiliates to have free rein over the content of ads does not excuse them from their responsibilities under the CAP Code. Indeed, the ASA has previously ruled that both the business and the affiliate marketer are responsible under the Code notwithstanding the fact that the ads may have been created solely by the affiliate rather than by the business themselves (GTMC Inc, 31 July 2013; LifeStyle Advantage Ltd t/a Essence of Argan, 6 March 2013).
Similarly, as primary responsibility for observing the Code falls on marketers, promotions run by affiliates that do not adhere to the Code will be problematic (Flamingo Intervest Ltd t/a Ziinga.com, 27 February 2013).