Insta post by Anna Heinrich first case to breach AANA’s new distinguishable ad rule

An Instagram post by influencer and Bachelor winner, Anna Heinrich, is the first case to breach the new distinguishable advertising rule in the Australian Association of National Advertisers (AANA) Code of Ethics.

The updated Code of Ethics came into effect on 1 February, with Section 2.7 stipulating that advertising and marketing should be clearly distinguishable and introducing the hashtags #ad, #advert or #paidpartnership as the preferred terms for marketing content on social media as these are more easily understandable for consumers than other common hashtags, #sp, #spon, #gifted or #collab.

Heinrich’s post shows her posing in a green dress from brand Runaway The Label alongside the caption ‘Turning my apartment into a Runway. Then back to my PJs I go! Wearing: @runawaythelabel’. Complainants wrote that the post had a ‘lack of regard to Australian law’ and had ‘no sponsorship transparency’.

The Instagram post found to be in breach of the AANA Code of Ethics

In addressing the complaint the Ad Standards Community Panel had to deliberate first on whether the post constituted advertising or marketing communication and then whether it was clearly distinguishable as such.

The panel noted that the clear display of the dress in the image paired with the use of the brand’s handle and tag did amount to material that would promote the brand in the eyes of consumers. As Runaway The Label did not provide a response to the complaint when given the opportunity, the panel proceeded under the presumption the Instagram post was authorised by the advertiser.

The practice note for the distinguishable advertising rule in the Code of Ethics notes that simply tagging a brand is not sufficient for indicating a post is marketing content. 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.

Subsequently, the panel considered that while some of Heinrich’s followers would recognise the post as most likely an ad, the lack of sufficient tagging to show there was an arrangement between the brand and the influence breached the Code of Ethics and the complaint was upheld.

Runaway The Label did not respond to Ad Standards’ ruling and Heinrich’s post has remained unchanged. Ad Standards has recognised this issue of non-compliance and will continue working with industry bodies to enact change.

The ruling comes as influencer marketing has come under scrutiny in light an investigation by SBS’ The Feed into the economics and regulation of the industry. Throughout the course of the four-episode documentary, reporter Calliste Weitenberg and producer Elise Potaka exposed issues in the influencer industry spanning lack of clarity from brands in partnership and contra terms, the availability of fake followers and engagement hubs, and failing vetting processes in influencer platforms and agencies.

Commenting to Mumbrella last month, Ad Standards’ executive director Richard Bean said that concern about distinguishable advertising was on the rise despite the regulator’s 2018 community perceptions research found that there was generally a low level of concern across the community about whether an ad was clearly distinguishable or not.

“The issue of distinguishable advertising is increasingly being raised in the media and wider community as a subject of community concern. This is reflected in complaints lodged with Ad Standards about online advertising which increased to just over 10% of total complaints received in 2020, from about 6% of total complaints in 2019,” Bean said.

“The recent update to Section 2.7 of the AANA Code of Ethics regarding distinguishable advertising provides much clearer guidance to advertisers and influencers about the specific obligations now in place. Ad Standards works actively to support advertisers, including social media influencers, to meet the standards set out in the Codes which benefits the community and businesses themselves.”

Heinrich has also been subject to another complaint lodged with Ad Standards, regarding a post for Crown Resorts. The complaints against the post raised similar concerns that the post had no transparency over sponsorship content and that it showed a lack of regard for Australian Consumer Law.

The complaint was dismissed by the Community Panel with the differentiating factor in this case from the first being the hashtag #CrownPartner clearly distinguished the post as advertising content for Crown Resorts.

In its response to Ad Standards, Crown highlighted that its processes since Heinrich’s 17 February post had been updated to require all marketing posts from influencers to use the hashtag #sponsored, in line with the updated AANA Code of Ethics and the Australian Influencer Marketing Council’s code of practice which was released in July last year.


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