Recommendation 69

HM Government Acknowledged

1. The ASA system ‘payment’ and ‘control’ tests have, for approximately 60 years, determined advertorial/native advertising that falls within the remit of the ASA system, and they help to ensure we—the advertising regulator—do not inappropriately extend our regulation to editorial or sponsorship matters. 2. The ASA adopts a broad interpretation of the payment and control tests, which means that, in practice, most influencer posts that involve the endorsement of a product or service fall within the remit of the ASA. For example, regarding the interpretation of brand ‘control’, as a rule of thumb, if influencers are not completely free to do and say whatever they want, whenever they want, about a product for which they have received payment or payment in kind, the ASA is likely to consider the brand exercises a critical level of control over the marketing communication and the remit test has been met. In practice, this means there are very few cases of influencer advertising that we reject or refer to other bodies because the control test has not been met. 3. In line with consumer protection law and to ensure consistency with the CMA, the ASA system takes every opportunity to confirm that ‘payment’ alone necessitates disclosure requirements (see p.3: https://www.asa.org.uk/static/9cc1fb3f-1288-405d- af3468ff18277299/INFLUENCERGuidanceupdatev6HR.pdf) irrespective of whether the post is ‘controlled’ by the brand. 4. We will commit to exploring how we can clarify further that payment alone invokes advertising disclosure requirements and we will explore whether there is a case for reconsidering the ASA system payment and control tests as they apply to certain categories of native advertising, including influencer advertising, whilst ensuring our regulation does not restrict freedom of speech by extending unduly to areas it should not, for example, editorial and sponsorship matters.