Following on from our introductory post last week, this week we’ll take a closer look at influencer marketing in the context of the leading industry and self-regulatory body for advertisers and marketers in Australia, the Australian Association of National Advertisers. 

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 – the Australian Association of National Advertisers.  It issues and administers a Code of Ethics, the object of which is to ensure that advertisements and other forms of communication comply with a base set of ‘ground rules’ and are:

• Legal;
• Honest;
• Truthful;
• Prepared with respect for human dignity, an obligation to avoid harm to the consumer and society and a sense of fairness and responsibility to competitors.

The Code of Ethics is supplemented by a Practice Note, developed by AANA and designed to guide advertisers in complying with the Code. 

AANA also issues more specific codes which relate to highly regulated industries, or specific issues.  These are:

• a Code of Advertising and Marketing to Children, 
• a Food and Beverage Advertising Code; 
• an Environmental Claims Code; and 
• a Wagering Advertising Code.

The Practice Note must also be used and applied by AANA’s sister body, Ad Standards (Australia’s advertising regulator), to administer its independent complaints system, whereby both competitors and members of the public can lodge complaints about advertising on any medium. We will consider the work of Ad Standards in the next few weeks. 

Code of Ethics & Influencer Marketing

The AANA Code of Ethics was updated in February 2021 to bring influencer marketing within the industry’s self-regulation system, largely in response to an ‘influx’ of complaints received by Ad Standards with regards to influencers and growing community concern regarding responsible marketing practices. 

Section 2.7 of the Code clearly states that “advertising shall be clearly distinguishable as such”, and the Practice Note guidance clearly states that the Code applies to the following, regardless of the media in question:

• all advertising or marketing communications under the reasonable control of the advertiser, whether or not consideration has been paid; and
• user generated content which is communicated via a site or digital platform over which the marketer has a reasonable degree of control.

The Practice Note includes detail as to how best comply with 2.7 and although it states that “there is no absolute requirement that advertising or marketing communication must have a label”, it also makes clear that since influencer marketing often appears alongside organic/genuine user generated content, it is much harder for the audience to differentiate between the two.  The Code goes on to state that:

Where an influencer or affiliate accepts payment of money or free products or services from a brand in exchange for them to promote that brand’s products or services, the relationship must be clear, obvious and upfront to the audience and expressed in a way that is easily understood (e.g. #ad, Advert, Advertising, Branded Content, Paid Partnership, Paid Promotion).Less clear labels such as #sp, Spon, gifted, Affiliate, Collab, thanks to… or merely mentioning the brand name may not be sufficient to clearly distinguish the post as advertising.

In doing so, it provides advertisers and marketers with clear guidance on what type of disclosure will be considered sufficient. 

Ad Standards regularly upholds complaints against influencers who have not gone far enough to make their relationship with a brand sufficiently clear.  However, brands should also look beyond the # used and also ensure that they follow the rules which apply to the marketing of their products set out elsewhere in the relevant Codes, for example any brands hoping to emphasise any sustainability credentials should consult the Environmental Claims Code.  By marketing their products via influencers, brands cannot usurp the rules which would apply in any form of traditional advertising.  The Guidance Note is clear that “responsibility for developing content that is aligned to the AANA Codes falls to the advertiser – the brand owner who has control over the relevant material and whose products or services are being promoted”. While an influencer may receive some negative publicity for an adverse Ad Standards decision, it is the brand which will foot the time, effort and resource of responding and otherwise dealing with any fall out, including any reputational damage.  We will talk more about Ad Standards in the coming weeks. 

The Food and Beverages Advertising Code

Food and beverage advertising in Australia is subject to strict rules and regulations that will apply to food and beverage products which are being ‘sold’ or promoted by influencers.  Key rules include:

• ensuring claims relating to material characteristics such as taste must be specific to the promoted products;
• ensuring that health and nutrition claims can be supported by scientific evidence as required by the Food Standards Australia New Zealand Code; and
• a prohibition on advertising occasional food to children.

Influencers who advertise alcohol also need to be over the age of 25 and must have an audience of at least 75% 25 year olds and over.  Alcohol marketing is also subject to specific rules under the ABAC Responsible Alcohol Marketing Code. 

Food brands therefore need to be careful when engaging influencers to plug their products – any perceived breach of the rules by an influencer (for example where they to go “off script” and make unsupported claims) will be considered a clear breach of the Code.  It’s important that brands have clear guidelines/approvals and contracts in place to ensure the influencer has been properly briefed as to the regulatory landscape and has essentially been told what they can and cannot say. 

Children’s Advertising Code 

In August 2023, the AANA announced a new Children’s Advertising Code to extend safeguards under the code to all advertising directed at children (previously applying to advertising for children’s products alone), in response to increased concerns from community, government and industry. The new code is designed to focus on the rise of “kidfluencers” and influencer advertising directed at children, and has introduced a specific requirement that it “must be immediately clear to a child that they are interacting with advertising content”, which may not previously have been the case where a child sees another child on-screen.  The prohibition on advertising occasional foods to children is also contained within the new Code (it was previously only contained within the Food and Beverage Code).  There is a further prohibition on advertising unsuitable or hazardous items to children, e.g., vapes and highly caffeinated drinks.

The new Children’s Advertising Code will take effect on 1 December 2023. 

Consumer goods brands using kidfluencers to advertise will therefore need to be particularly cautious of disclosure requirements, regardless of whether the product is a children’s product per se.  This will be particularly important for brands using kidfluencers on channels like Twitch and Roblox where content naturally appears to be more organic than other platforms.  Food brands need to be particularly careful with targeting children – influencers should only be used to market occasional foods if their audience makes up more than 75% of non-children (i.e., 15’s and over).  

Wagering Advertising Code

The Wagering Advertising Code applies to ads for products and services related to betting on horse racing; harness racing; greyhound racing; sporting events; novelty events; fantasy sport terms and other contingencies. It does not apply to gaming (such as casino games or electronic gaming machines), lottery products or trade promotions. 

Among other prohibitions, the Waging Advertising Code prohibits ads such as those directed to minors, depicting a person aged 18-24 years old engaging in betting activities, condoning betting in combination with the consumption of alcohol, or implying the promise of winning. 

Betting companies therefore cannot use 18-24 year old influencers to promote their products and must be careful of influencers being seen with alcohol in wagering #ads.

Environmental Claims Code

The Environmental Claims Code applies to representations in advertising that an aspect of a product or service, or component / packaging / quality relating to a product or service, interacts with or influences the environment. Environmental Claims may include representations that state or imply:

• a benefit to the environment; or
• no effect on the environment; or
• no or limited effect on the environment if the product is used or delivered in a particular way.

We have previously published an article on the risks of ‘greenwashing’ in advertising and the ACCC also takes a keen interest in the topic, recently issuing ‘green claims’ guidance itself.  

Influencers hold a particularly interesting position in the greenwashing ecosystem and research published by Unilever recently showed that 75% of people are likely to take up behaviours to help save the planet after watching social media content about sustainability.  As countries around the world clamp down on ‘greenwashing’ by brands, it’s possible that we will start to see brands greenwashing ‘by the back door’, i.e. by paying influencers to sell their ‘sustainable’ credentials in a more organic way than could be achieved through traditional media.  However, this would be fraught with regulatory issues and would no doubt receive a lot of attention from ad standards if not properly disclosed or done in compliance with the various AANA Codes (not to mention consumer law regulators).

What does this mean for you? 

Businesses are encouraged to stay up to date with the various codes administered by the AANA and Ad Standards, as they are reviewed and updated in conjunction with shifts in community standards. Businesses should read and understand their obligations if publishing ads or marketing applicable to any of the codes.  It is safe to say that influencer marketing is no longer the ‘wild west’ of marketing that it once was, and brands who think that they can usurp the rules by delivering a message via an influencer, rather than in traditional media, are likely to end up on the wrong side of an Ad Standards decision (and potentially the subject of investigation by consumer law regulators).