Earlier this year, the ACCC announced that it was conducting social media sweeps to identify misleading testimonials and endorsements by social media influencers having received more than 150 tip offs from consumers. 

Despite finding in those sweeps that 81% of influencers posts it looked at were “concerning” and “in need of follow-up action”, there has been little regulatory activity to date.

However, that doesn’t necessarily mean that brands and their talent can relax – the ACCC made clear in its report that: “in the next phase of sweep analysis, the ACCC will conduct further assessments of these posts to verify whether [they] contain commercially sponsored content”.  It is likely (based on its comments on page 168 of the report) that the ACCC will also target brands, advertisers, marketing firms and platforms.  This is a significant undertaking which will likely involve enquiring into specific contractual agreements behind various posts and is therefore likely to take some time.  

The ACCC has promised that a short public report will be issued at some stage this year containing further detail on sweep results, and that various education, compliance and potential enforcement activities will also be conducted.  However, the ACCC is one of many bodies interested in influencer disclosure rules and general advertising practices. 

So, who are the other bodies and how do they all fit together?  We take this opportunity to recap, below. 

Australian Association of National Advertisers (AANA)

Australia (like many jurisdictions around the world, including the UK) operates a system of self-regulation which is overseen by AANA whose Code of Ethics and the accompanying Practice Note set the standard for advertising, including on social media.  The AANA Code of Ethics is supplemented by a Code of Advertising and Marketing to Children, Food and Beverage Advertising Codes, Environmental Claims Code and Wagering Advertising Code.

Ad Standards 

Ad Standards handles consumer complaints about advertising, including on social media and its ‘Community Panel’ determines whether there has been a breach of the AANA Code.  The Panel is made up of people from a broad range of age groups and backgrounds, who are recruited through an open process.   All decisions are published and a search function is available to identify those which relate specifically to social media. The 2022 review of operations shows that social media last year prompted the second highest number of complaints (with free-to-air TV being the first) and that 8.34% of the 2601 complaints it received related to disclosure issues.

Ad Standards also resolves competitor complaints via the Ad Standards Industry Jury which, depending on the circumstances, can be a more cost effective and efficient mechanism to resolve complaints than court processes. 

Australian Influencer Marketing Council (AiMCO)

The Australian Influencer Marketing Council (AiMCO) was established in 2019 at the request of members of the Australian advertising industry seeking clarity and assistance with best practice for influencer marketing.  Its Best Practice Working Group developed the Australian Influencer Marketing Code of Practice, which is available to members and provides guidance to those working in the Australian influencer marketing sector. The Code of Practice is voluntary and aims to align with the codes and standards of other relevant industry bodies, including the AANA Code of Ethics.

The Therapeutic Goods Administration (TGA)

The TGA is Australia’s regulator of therapeutic goods including medicines and medical devices and its Advertising Code determines how these products can be advertised.   In 2022, the Code was updated to clarify and restate that persons, including influencers, are prohibited from making testimonials but are permitted to endorse. There is sometimes confusion as to when and where the TGA’s rules apply, however influencers posting about skincare, beauty products, sunscreen, vitamin supplements, cosmetics or other medical and health related products should be aware of this Code. 

Australian Securities and Investments Commission (ASIC)

ASIC is Australia’s financial markets conduct regulator and has issued specific guidance towards discussing financial products and services online.  The guidance is aimed specifically at financial influencers (or finfluencers) who discuss investing as well as possible risks and returns.  ASIC has stated that it monitors influencers and will take enforcement action where it is in the public interest to do so.

What does this mean for you?

When engaging in influencer marketing, businesses should be aware of the various regulatory bodies and their Codes, and ensure that paid posts are properly disclosed in line with the rules.  Over the next few weeks, we will do a deep dive into all of the above bodies to set out the precise rules.