The new Code of Ethics’ clause for advertising to be clearly distinguishable came into effect on 1 March and since that time the AANA regulatory team has given free training to many of our members, as well as answering a steady stream of inquiries from the public in general.

A recent example discussed at our training sessions, comes from the US and illustrates some of the potential pit falls for advertisers.

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Last year, US luxury retailer Lord & Taylor paid 50 ‘influencers’ between $1000 to $4000 to post photos of themselves over a weekend wearing a paisley print dress from one of its collections. The Federal Trade Commission (FTC) stated that the brand went against recently published native advertising guidelines, and “failed to disclose they had given each influencer the dress, as well as thousands of dollars, in exchange for their endorsement.”

As well as taking issue with the brand’s partnership with fashion bloggers, the FTC said that the marketer had also enlisted the online edition of Nylon magazine to promote the same clothing line on Instagram without making it clear that the posts were paid for ads. Lord & Taylor promised to review future endorsement campaigns, escaping a fine on this occasion.

In the US, the advertising Code has recently been updated to prohibit advertisers from misleading consumers in relation to “the nature or source of native ads”, following on from extensive guidance published by the FTC (the US equivalent of the ACCC here). The AANA Code change was a proactive move by some of Australia’s major advertisers to take responsibility for making advertising clearly distinguishable as such and to set the standard for the rest of industry, without the need for regulatory involvement.

Here’s a reminder of some of the key points to keep in mind.

The Clause

Advertising or marketing communications shall be clearly distinguishable as such to the relevant audience.” 

What does the new clause apply to?

Being part of the Code of Ethics, the new clause (2.7 in the Code) applies to all advertising and marketing communications which is published or broadcast using any medium where the advertiser or marketer has a reasonable degree of control, and that draws the attention of the public in a manner calculated to promote a product, service, person or organisation.

How do the Guidelines work?

The new Distinguishable Advertising Guidelines gives guidance and assist advertisers by giving a range of examples on how to make advertising clearly distinguishable to the relevant audience. The Code or Guidelines does not explicit state how advertising should be made distinguishable. The advertiser has flexibility in ensuring disclosure as this will depend on the nature of the content, the audience and the use of logos, brand names combined with other visual or audio cues where appropriate. If a consumer feels that advertising is not distinguishable they can make a complaint to the Advertising Standards Bureau and the Advertising Standards Board will make a determination.

What are some tips to comply?

A starting point is to develop a social media policy for any influencers you engage – set out what is acceptable and unacceptable behaviour in relation to social media use and comments.  Ensure influencers:

  • Disclose that they are an influencer in all work where they are referring to your business
  • only post about what they know and assess the product/service honestly
  • check that the overall impression of the message is accurate
  • clearly disclose any important limitations or exemptions
  • ensure that any messaging will be clearly understood by the relevant audience
  • closely monitor their posts and remove any user generated content that may be misleading

Read the full Clearly Distinguishable Advertising Guidelines here.