Influencers must reveal sponsors, but TV shows can keep quiet about product placement, say new advertising rules

Brands who pay influencers to spruik them on social media have just four weeks to start disclosing it, according to new guidance from the Australian Association of National Advertisers. The guidance also covers native advertising and traditional media, including product placement and advertorial.

Brands that fail to disclose when money has changed hands may be in breach of a new provision in the AANA Code of Ethics, which kicks off on March 1.

The code is enforced watchdog the Advertising Standards Board, which is funded by the ad industry.

The AANA issue has issued detailed guidance on how to avoid falling foul of its new provision – clause 2.7 of its code of ethics – which states that “advertising or marketing communication must be clearly distinguishable as such to the relevant audience”.

The rules demand for the first time that advertisers must make ads “clearly distinguishable” from surrounding content and make sure they “do not camouflage the fact that it is advertising”.


The move comes in the wake of rising concerns about how clearly ads are being identified.

In one of the most infamous cases, the South Australian Tourist Commission was outed by the ABC’s Media Watch in 2012 for paying influencers, including chef Matt Moran, to tweet about their experiences on Kangaroo Island.

And late last year, Media Watch focused on arrangements involving News Corp’s editor-at-large Melissa Hoyer.

SATC paid celebs for Twitter endorsements for Kangaroo Island

SATC paid celebs for Twitter endorsements

Across social media, and Instagram in particular, some influencers are being paid sizeable sums or offered goods in kind to promote brands, without necessarily disclosing to their followers that they are doing so.

The guidelines set out two criteria: “Does the marketer have a reasonable degree of control over the material; and does the material draw the attention of the public in a manner calculated to promote a product or service?”

“Context driven advertising and marketing is permitted, but marketers should be cognizant that, in seeking to make their advertising and marketing communication more engaging, they do not camouflage the fact that it is advertising,” the guidelines state.

It also notes that payment may not necessarily be made and that free product exchanges and other non-cash deals could also bring ads under scrutiny.

Under the new rules, one way that influencers could disclose the arrangement is to use the hashtag “#ad”.

To show how it will apply the rules, the AANA has published 18 examples of ways in which ads might be placed across media, and guidance on if they should be labelled as ads.

One example relating to influencers featuring hypothetical beauty brand ‘Fab Faces’ states:

FabFaces arranges with the influencer to post content on social media where FabFaces retains control over the content.

That content is likely to be considered a marketing communication and must be clearly distinguishable as such to the relevant audience, for example a tweet could include a tag @FabFaces #ad or if there are a series of connected tweets in a short space of time, the final tweet could include a brand tag e.g. #FabFaces #ad or similar wording.

But one potential way to skirt the rules are that where samples are sent to influencers without a formally agreed quid pro quo, no disclosure is required. The hypothetical says:

FabFaces sends a celebrity a set of make-up brushes for  free without any stipulation that she must post comments about the products on social media.

Where there is no control by FabFaces over any statements the celebrity may make then any resulting communication is not considered to be advertising or marketing communication.

The guidance does not just cover direct payment. The widespread practice of food bloggers who offer to post a review of a restaurant in exchange for a free meal might also come under scrutiny.

According to the guidance: “The AANA Codes apply equally where other arrangements have been made in place of direct payment (for example, where the brand owner provides free product to an independent third party in exchange for them to produce content).

Native advertising – featuring content on topics of interest to a brand but not featuring the brand would not need to be labelled an ad, even if the sponsor logo was alongside it.

A sport website ‘OnlySports’ features articles about different sports and product reviews. An article on the main page is titled ‘The 10 best cities for active holidays’. Just Boots paid the site to create this article – it says ‘Presented by Just Boots’ and includes the JB logo.

In this case the article is not a form of advertising as it doesn’t promote any of Just Boots’ products.

Another place where advertisers will remain in the clear is product placement on shows like MasterChef, The Block or My Kitchen Rules. The watchdog claims this is because the public doesn’t mind.

A television cooking show ‘Wonder Chefs’ integrates products by two chefs using particular food and beverage products, using particular cookware and wiping kitchen benches with particular cleaning products. The advertisers have paid for the branded products to feature in the show, however the show makes no claims about the products.

Even though consumers may not realise the advertisers have made a commercial arrangement for their products to appear, the use of the branded products is sufficient to distinguish the material as an advertisement or marketing communication. Further disclosure of product placement may not necessary. There is a prevailing community view that audiences do not need to be notified of this sort of product placement.

These rules are less stringent than those in the UK, where a logo most be displayed on screen when product placement occurs.

Other rules include making sure advertising is distinguishable from news content, which can be done by regular mentions of the product name, or the obvious use of humour.

The guidelines come some months after action in other developed markets around the world. In the US, the Federal Trade Commission threatened a crackdown on brands failing to disclose sponsored posts. And in the UK the Advertising Standards Authority has similar rules.

The full list of scenarios can be found here.

It is unclear how much impact a ruling by the ASB would actually have on influencers found to have broken the rules. Given the short periods of time that influencer campaigns usually run for, they would be likely to have already ended by the time the ASB investigated. And other than the potential negative publicity of an adverse ruling, the industry body has no statutory powers to punish those who break the rules.

  • The new guidelines and how they will impact influencer marketing is set to be tackled at next month’s CommsCon, organised by Mumbrella. Speakers are due to be announced in the near future. To see the program and to buy tickets click here.

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