septembre 13 2017

Influencer Ad in Disguise on Instagram: First ASC Decision

Deschênes-Hébert Sophie

This summer, Advertising Standards Canada (“ASC”) issued its first decision regarding mandatory disclosure of the commercial nature of an influencer’s post on social media. The complaint received by ASC concerned an influencer’s Instagram post where the influencer described her experience with a facial product manufactured by a cosmetics company. According to the complainant, the post was false or misleading because the fact that the message was sponsored was not disclosed. ASC determined that there was indeed violation of clauses 1(b) and 2 of the ASC Code:

« 1. Accuracy and Clarity

In assessing the truthfulness and accuracy of a message, advertising claim or representation under Clause 1 of the Code the concern is not with the intent of the sender or precise legality of the presentation. Rather the focus is on the message, claim or representation as received or perceived, i.e. the general impression conveyed by the advertisement.


(b) Advertisements must not omit relevant information if the omission results in an advertisement that is deceptive or misleading.…

2. Disguised Advertising Techniques
No advertisement shall be presented in a format or style the concels the fact that it is an advertisement.»

2. Disguised Advertising Techniques


In its decision, ASC states:

“Council, [sic] agreed with the complainant, finding that the Instagram post was disguised advertising and failed to disclose the relevant information that the posting contained sponsored content. The advertiser is not identified in this case summary because it took steps before Council met to adjudicate the complaint to have the post appropriately amended with the addition of “#ad”.


It is interesting to note that the ASC’s decision is based on clauses 1(b) and 2 of the Code, which concern advertising in general, and no reference is made to Interpretation Guideline #5 - Testimonials, Endorsements, Reviews. This guideline was adopted in October 2016 by ASC to determine the criteria that testimonials, endorsements or reviews had to meet to comply with clause 7 of the Code, which states that testimonials must not be used in a manner that is false or misleading. More specifically, this guideline states that if a material connection exists between the person giving the testimony and the advertiser, then such material connection must be clearly and prominently disclosed in close proximity to the representation about the product or service. This guideline was strongly inspired, and in fact refers to, the United States Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising.

2. Disguised Advertising Techniques

In its decision, ASC states:

In its decision, ASC stat

Did you know that ...

Some members of our team have been among the first lawyers to make representations before the Commission de reconnaissance des associations d’artistes et des associations de producteurs.

Deschênes-Hébert Sophie
Sophie Deschênes-Hébert
Ms. Deschênes-Hébert advises advertisers and advertising agencies for their campaigns.
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