Further to our previous article outlining important amendments to the Canadian Code of Advertising Standards, Ad Standards (previously named Advertising Standards Canada) has published guidelines to assist influencers and brands in complying with their "material connection" disclosure requirements. The Influencer Marketing Disclosure Guidelines (the "Guidelines") are an important resource to help ensure influencer marketing campaigns comply with applicable laws and regulations. Most importantly, they can prevent the use of deceptive marketing practices — such as the dissemination of misleading representations — that might subject both influencers and brands to significant legal liability (among other undesirable repercussions).
The Guidelines are intended to provide practical compliance advice, including "dos" and "don'ts" of disclosure that are illustrated by platform-specific examples. With that being said, the fundamental underlying principle that must be observed in all instances is that "material connection" disclosure is necessary and must be clear, conspicuous and broadly understood.
It is important to note that the Competition Bureau has also recently provided its own perspective regarding influencer marketing campaigns in its Deceptive Marketing Practices Digest - Volume 4 (the "Digest"). The Digest states:
"While nothing is wrong with advertisers compensating influencers, or with influencers accepting compensation, both parties to these relationships need to remember that they are making marketing representations to consumers. After all, for advertisers, influencers are one more channel for marketing, allowing them to target a particular audience in a way that is not possible with traditional media.
As for all marketing representations, there are rules that they must follow. The Competition Act prohibits misleading advertising and deceptive marketing practices. These provisions apply to influencer marketing just as they do to any other form of marketing."
The Digest includes important guidance, including "material connection" disclosure checklists for influencers and brands, respectively. Accordingly, it is imperative for all participants in influencer marketing campaigns to read both the Guidelines and the Digest. As noted in the Digest:
"There is broad consensus among consumer protection agencies and industry groups around the world about the importance of clearly and effectively disclosing material connections between influencers and advertisers.
In Canada for example, the Influencer Marketing Steering Committee, coordinated by Ad Standards, recently published draft Disclosure Guidelines, setting out best practices for influencer marketing and providing detailed examples of disclosure strategies for different online scenarios.
This is one example of a growing body of valuable guidance that is available online for influencers and advertisers looking to shape effective disclosures for various online platforms. (See "Further Reading")
The Competition Bureau encourages anyone actively involved in influencer marketing activities to consult these resources before going live with their campaign."
We will continue to monitor and provide updates regarding the rapidly evolving legal and regulatory landscape underpinning influencer marketing campaigns. On this point, Ad Standards notes that its Guidelines are intended to be a living document that will be regularly updated (and interested parties are invited to provide feedback at firstname.lastname@example.org). Stay tuned!