ACCC announces a social media sweep targeting influencers

On 27 January 2023, the Australian Competition and Consumer Commission (ACCC) announced it had commenced a sweep of social media posts by influencers to identify testimonials and endorsements which are misleading. The sweep includes reviewing the posts of more than 100 influencers who have been referred to in tip-offs the ACCC has received from the public. Most of the tip-offs concern influencers who did not disclose their relationship with a company or product.

Social media platforms being reviewed include Instagram, TikTok, Facebook, YouTube, SnapChat and Twitch, which is a livestreaming service.

The ACCC has also focused on sectors in which marketing by influencers is conducted widely – these include beauty and cosmetics; health, fitness and wellbeing; food and beverages; fashion; travel; gaming and technology; and parenting.

The Australian Association of National Advertisers’ (AANA) Code of Ethics requires that advertising must be clearly distinguishable as advertising – an influencer’s relationship with a brand 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)”.

The Australian Influencers Marketing Council’s (AiMCO) Australian Influencer Marketing Code of Practice includes a range of disclosure recommendations for paid, gift and value-in-kind engagements, which are clear and unambiguous. Handy tips for both brands and influencers in clause 2.4a. of the Code include:

  • “Disclosures should be placed with the content – not in a personal profile;
  • Recommended advertising disclosure must be legible;
  • Recommended advertising disclosure can only be abbreviated as #Ad, #Advert or #Advertising; #Sponsored
  • Disclosure must be included in the first appearance of the content, and any subsequent appearance;
  • Must be visible to the consumer on first view, not mixed with a group of hashtags or links;
  • Endorsement in a picture (ie Snapchat or Instagram Stories) superimpose over picture with enough time for viewers to notice;
  • In first frame or first reveal;
  • Where video is used, the declaration should be at the beginning of the video, and if a long video can be repeated – not just within the description of the video;
  • Live stream disclosures may need to be repeated for viewers who only see part of the stream; and
  • Pull-through used as continuous scroll”.

Besides influencers, the ACCC will also be looking at the roles that others play in enabling misconduct on social media platforms, including brands, advertisers and marketers.

Direct selling companies should ensure that their salesforces receive training regularly regarding the use of social media in their businesses, particularly using testimonials and endorsements in a compliant matter.

This is also a timely reminder for those direct selling companies with therapeutic goods, neither:

  • your salesforce; or
  • influencers (if receiving valuable consideration for their testimonial),

should be posting testimonials on social media in connection with their use of these products – this is prohibited expressly in the Therapeutic Goods Advertising Code.

We recommend that direct selling companies conduct their own sweep of their brand ambassadors’ and salesforces’ social media activities to ensure posts are compliant.

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