August 12, 2019

The ASA notes that influencer marketing on social media continues to grow and develop, becoming very much an established part of the advertising and marketing landscape. While much of the regulatory discussion to date has been centred on labelling and transparency, CAP says that it is important to remember that the rest of the CAP Code applies too and there are some products, such as medicines, that cannot be endorsed by certain types of people (e.g. “celebrities”).

In ASA Ruling on Sanofi UK in association with This Mama Life (3 July 2019), the ASA recently upheld against an influencer ad for a medicine. The ASA ruled that the influencer was a “celebrity” for the purposes of rule 12.18, due to the nature of the content they had posted and the subsequent influence they had over the considerable number of individuals that followed them. The MHRA Blue Guide indicated that ads for medicines should not contain material that, “refers to a recommendation by scientists, healthcare professionals or persons who because of their celebrity, could encourage the consumption of medicinal products”.

CAP explains that although in that case the influencer had 30,000 followers, it was not the number of followers alone that defined the influencer as a “celebrity”. Rather, it was a combination of factors that led the ASA to consider that their sway over the audience concerned was such that it could unduly influence and encourage the consumption of medicinal products.

CAP makes clear that the ruling was “not about the ASA seeking to define certain influencers as “celebrities” in the traditional sense, or to determine a specific number of followers that would make an influencer a ‘celebrity’”. The decision was specific to rule 12.18, which reflects medicines law, the intention of which is to prevent undue influence over consumers’ decisions about purchasing a medicine.

CAP says that, although it will take further rulings on this to create a clearer picture of where any potential lines are drawn, it believes there is a strong argument that if an influencer is specifically chosen to promote a medicine due to their “influence” over a captive audience (who have actively chosen to follow them), that individual could potentially be considered a “celebrity” to those followers (regardless of their number), for the purposes of that rule. As such, CAP says, “there seems to be an inherent risk in using influencers to promote or endorse licensed medicines”. To read CAP’s news item in full, click here.

CAP is holding a training event on “Influencing Responsibly” on 1 October 2019. The event will cover the rules for influencers, creators and bloggers. For further information, click here.