Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.

Affiliate marketing is a type of performance-based marketing where an affiliate is rewarded by a business for each new customer attracted by their marketing efforts (typically measured using ‘clickthrough’s’ or sales), usually with a pre-agreed percentage of each sale as a commission.  Affiliates place ads and links online that direct consumers to the website of a company.  This includes trackable links obtained directly through brand-owned affiliate programs, such as ‘Amazon Associates’, or through affiliate networks like ‘Awin’, ‘Skimlinks’ or ‘LTK’.  Affiliates are effectively acting as a secondary advertiser since they earn money in direct proportion to the interest they generate in a product.

Both the business and the affiliate marketer are responsible under the Code, notwithstanding the fact that the ads may have been created solely by the affiliate without any input from the business themselves.

Remember that the CAP Code applies to affiliate marketing

When an individual or a company signs up to another brand’s affiliate scheme, they are entering an agreement to promote that brand’s products in exchange for payment.  They are paid in direct proportion to the number of clicks or purchases that result from their references to the brand and its products, and these clicks or purchases are counted using discount codes or URLs that are unique and attributable to each ‘affiliate advertiser’.  If these references refer to the brand on their own websites or social media, after signing up to be affiliate advertisers, these references are likely to be considered “directly connected with the supply or transfer of goods, services, opportunities and gifts” (Scope of the CAP Code, I.h.).  As a result, the CAP Code would apply in full.

In some types of media, such as news articles, blog posts and vlogs, the ASA may accept that the affiliate advertising content appears alongside content that’s genuinely editorial in nature.  In such cases, the CAP Code would only apply to the parts that refer to the affiliate brand and its products, as well as any text that includes an affiliate link, promotional code, or other means by which a new customer or sale can be attributed to a specific affiliate (Matalan Retail Ltd in association with TL Blog Ltd, 30 October 2019).  In contrast, where content in its entirety refers to the affiliate brand or its products, the Code would apply to the content in its entirety. 

The same distinction applies in principle to all media types.  However, in shorter media such as social media posts, the ASA is less likely to accept that the affiliate advertising can be separated out from the rest of the content.  For example, if an influencer's social media post depicts and refers to a brand for which the influencer has signed up as an affiliate advertiser, the CAP Code is likely to apply to the post in its entirety.

The ASA may also consider that a social media post counts as an affiliate ad even if the post itself doesn’t contain an attributable affiliate link or code, as long as the post was created in reference to the affiliate agreement.  In one formal ruling, the ASA assessed a series of Instagram stories that featured the affiliate products and linked consumers to a landing page where the affiliate Code was stated (BPerfect Ltd, 21 July 2021).  Though the Instagram stories didn’t contain the affiliate code themselves, the ASA considered that they were affiliate ads because of the influencer’s commercial interest in consumers clicking through to the landing page, and then using the discount code.

The ASA has also considered that social media posts still counted as affiliate ads when they were published outside of the time period agreed with the affiliate brand, because they were still commercial in their intent (Sportswift Ltd t/a Card Factory, 06 May 2020).  In one formal ruling, the ASA considered that the CAP Code still applied to a TikTok post that featured an expired affiliate discount code. The ad was published after the advertisers’ contracted agreement with the affiliate had ended, and as a result the affiliate did not ultimately receive commission for sales generated through use of the code.  However, the ASA considered that the TikTok post was still commercial in intent due to its inclusion of a discount code that the affiliate had been contracted to include under the initial commercial agreement (Jemella, in association with Emily Canham, t/a GHD, 04 November 2020).

The ASA has ruled on various forms of affiliate marketing including: emails, banner and in-game ads, paid for ads on Facebook, tweets, websites made to look like editorial content, and blog posts (Club Website Ltd, 8 January 2014; JC Inc t/a justcloud.com, 27 March 2013; Mobjizz Ltd t/a Ewank.com, 10 June 2015; Flamingo Intervest Ltd t/a Ziinga.com, 27 February 2013; bet-at-home.com Internet Ltd, 13 April 2016; Slimtoneplus.com, 19 December 2012; Teepee Disco Ltd t/a PlayPennies, 14 August 2013). 

Make sure affiliate marketing is obviously identifiable

Rule 2.1 of the CAP Code requires that marketing communications are obviously identifiable as such.  The Code also states that marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession and that marketing communications must make clear their commercial intent, if that is not obvious from the context (rule 2.3).

Some forms of affiliate marketing will be obviously identifiable because of the nature of the medium, for example banner ads, branded emails, ‘cashback’ websites or websites solely dedicated to the product or service promoted.  However, in social media, vlogs, blogs, news sites and voucher sites, while it is certainly possible for the wider context and overall presentation to make clear that the author posting the content has a commercial relationship to the linked-to products, it may not be clear in all cases – particularly where the individual concerned is primarily a creator of non-commercial content or where the overall impression is of editorial independence.  In such cases, some form of additional disclosure is likely to be required to ensure that the affiliate content is obviously identifiable as a marketing communication.

The recommendations below detail how affiliate marketing in different scenarios, if not otherwise clear from the context, could be made obviously identifiable.  These are not intended to be exhaustive or prescriptive and approaches other than those suggested may be equally acceptable.

Blogs and news sites

Where the content wholly concerns affiliate linked products and is entirely ‘directly connected’ to the supply of those products, the commercial nature of the content should be clear prior to consumer engagement (Associated Newspapers Ltd t/a MailOnline, 21 December 2022; Procter & Gamble (Health & Beauty Care) Ltd t/a Beauty Recommended, 27 May 2015; Mondelez UK Ltd, 26 November 2014).  The most straightforward way to do so – if not otherwise clear from the context - is likely to be including an identifier, for example ‘Ad’, in the title of the blog or article in such a way that it is clear to consumers before they click through to the content, as well as to those reading the content.

In addition, although not a requirement of the Code, affiliate marketers may choose to explain the nature of the relationship between themselves and the company by stating that they receive a small share of sales through the inclusion of links, promotional codes etc. 

Where only some of the links are for affiliated products and/or not all the content is ‘directly connected’ to the supply of those products, it’s unlikely that a general identifier, for example ‘Ad’, would be necessary in the title but content related to affiliated products (and the links themselves) should be identifiable as advertising.  If not otherwise clear from the context, this means highlighting the relevant content so that it is obvious prior to engagement which links and associated content are advertising within each article.

By way of some examples, placing an identifier such as ‘(Ad)’ before parts of the content that relate to affiliated products is likely to be acceptable, as it would distinguish it from the editorial content.  Or stating clearly at the beginning of the content that asterisks or other equivalent identifiers set out in the article relate to ‘advertising’ (and/or that they indicate that the author will receive a small share of sales through the related link(s)) would also be acceptable.  A disclaimer of this nature at the bottom of such a post is unlikely to be sufficient because there is the potential that the links and any ‘directly connected’ claims would not be considered obviously identifiable as advertising at the time they are encountered by the reader.  Similarly, a generic and ambiguous disclaimer which indicates that the author ‘may’ receive a commission is unlikely to be acceptable, particularly where the specific affiliate content has not been highlighted.

Several articles on the MailOnline website, and their corresponding ‘teaser’ links from the homepage, were judged to be advertising in their entirety as they focused wholly on affiliate linked products. While the articles included a disclaimer at the top this was judged to be insufficient, not least because the ASA considered that the phrasing “may earn an affiliate commission” was ambiguous and confusing, because it suggested that they might not receive any payment when, barring errors in the administration of the affiliate arrangement, they would receive commission for purchases made via the links (Associated Newspapers Ltd t/a MailOnline, 21 December 2022). 

A fashion blog was found to breach the Code because it contained a number of affiliate links next to featured products but none of this advertising content was clearly labelled with an identifier such as “#Ad” (Matalan Retail Ltd in association with TL Blog Ltd, 30 October 2019).

Similarly, an article on the Liverpool Echo website with the headline “Currys PC World launches its incredible Black Friday 2018 deals with £600 off TVs” was found in breach. Each product name in the article included an affiliate hyperlink, from which the Liverpool Echo would receive commission for any sales generated.  There was a banner at the top of the article, above the headline that stated “IN ASSOCIATION WITH REACH SOLUTIONS. Marketing solutions designed to grow your business”, which the ASA considered would be interpreted as being part of the website’s architecture rather than a feature of the story. While they acknowledged that the banner could have indicated that a financial arrangement was in place, they did not consider it sufficient to identify the content specifically as advertising, nor counteract the impression that the content was entirely editorial (DSG Retail Ltd & Reach Plc, 17 April 2019).  

Vlogs

As with blogs and news sites, where the content of a vlog wholly concerns affiliate linked products (usually linked in the description) and is entirely ‘directly connected’ to the supply of those products, the commercial nature of the content should be made clear prior to consumer engagement (Procter & Gamble (Health & Beauty Care) Ltd t/a Beauty Recommended, 27 May 2015; Mondelez UK Ltd, 26 November 2014).  For instance, if not otherwise clear from the context, the title and/or thumbnail of the vlog could contain an identifier such as ‘Ad’ so that it is clear to consumers before they click through to the content, as well as to those watching the content.

In addition, although not a requirement of the Code, vloggers may choose to explain the nature of the relationship between themselves and the company by stating in the description of the video, or verbally, that they receive a small share of sales through the inclusion of links, promotional codes etc.

If only some of the products are affiliate linked and/or not all the content is ‘directly connected’ to the supply of those products, it’s unlikely that a general identifier, such as ‘Ad’, would be required in the title/thumbnail but content which relates to affiliated products (and the links) should be obviously identifiable as advertising.  If not otherwise clear from the context, this means highlighting the relevant content so that it is obvious prior to engagement which specific links and associated content are advertising.  This can be done in any number of ways within the video; for example, by including on-screen text/holding up a sign when they’re talking about affiliated products (e.g. “Ad’) or verbally explaining which parts of the content are ‘advertising’ (and/or that they receive a small share of sales through the related link(s)), before talking about affiliated products.  It should be equally obvious in the description which products/links are advertising.

In all cases, affiliate marketers should take care to ensure that the content is obviously identifiable to all consumers who encounter the material and bear in mind any limitations and technical ‘quirks’ on the platform they are using (e.g. any limits on what is visible, and when, in different contexts such as in-app and on mobile).

Social media posts

Any social media posts which include affiliate linked products/services/brands, including those posted by influencers, should be obviously identifiable as advertising upfront (BPerfect Ltd in assoc. /w Charlotte Dawson, 21 July 2021). 

If all the products within a single post are affiliate linked and the post appears on social media where there is no character limit, for example on Facebook, it is likely that the post will need to include an identifier at the beginning, for example “Ad”.   In addition, although not a requirement, affiliate marketers may choose to state within the post that they receive a small share of sales through the link(s).

A post on @aliyahmariabee’s Instagram, featuring an image of Aliyah holding a pot of Coco Shine teeth whitener and the caption “Morning y’all so recently I’ve been using this teeth whitener and I’m very happy with my results. It’s super affordable make sure you guys go check out @cocoshineau (DISCOUNT CODE: ALIYAH40 for 40% off)”, was judged to be in breach of the Code.  It was understood that Aliyah would receive a commission for every sale where her discount code was used.  While the post differed in some respects from her usual posts and contained some elements that indicated there might be a commercial relationship between, the ASA considered that the content and context of the post did not make clear that it was advertising, as opposed to, for example, genuinely independent editorial content or sponsored editorial content (Coco Shine, 27 June 2018). In 2020 the ASA ruled that an Instagram Story containing the standalone label "*affiliate" was not sufficient for the Story to be recognisable as an ad (Asos.com Ltd, 22 April 2020).  The ASA considered it insufficient not only because it was partially obscured by the "swipe up" button, but also because the term "affiliate" itself was not widely understood by consumers, as the ASA's labelling research had demonstrated.  The ASA has also ruled that the label “a d/affiliate” was not sufficient due to the way in which “ad” had been presented (with a space between the letters) and that the label “#collab” wasn’t sufficiently clear (J Choo Ltd in assoc. /w Victoria Magrath, 30 November 2022; Charlotte Tilbury Beauty Ltd, 13 October 2021.)

On Twitter, as space is limited, labelling the content with “#Ad” or similar is likely to be the clearest way of identifying it as advertising.  Similarly, on Pinterest where the amount of content controlled by the ‘pinner’ is limited, placing “Ad” or similar at the beginning of the free text ‘Description’, because only a small portion of this appears without clicking, is likely to be acceptable.

If only some of the products in a post are affiliate linked and/or not all the content is ‘directly connected’ to the supply of those products, it needs to be obvious which links and associated content are advertising.  This can be done in any number of ways including, for example, marking the relevant links with something like ‘Ad’. Or, depending on the length of the post, stating clearly at the beginning that asterisks or other equivalent identifiers relate to ‘advertising’, and/or that they indicate that the author receives a small share of sales through the related link(s), would also be acceptable.   A disclaimer of this nature at the bottom of such a post is unlikely to be sufficient because there is the potential that the links and any ‘directly connected’ claims would not be considered obviously identifiable as advertising at the time they are encountered by the reader. Similarly, a generic and ambiguous disclaimer which indicates that the author ‘may’ receive a commission is unlikely to be acceptable, particularly where the specific affiliate content has not been highlighted.

In all cases, affiliate marketers need to take care to ensure that the content is obviously identifiable to all consumers who encounter the material and should bear in mind any limitations and technical ‘quirks’ on the platform (e.g. any limits on how much is visible and the fact that some social media sites cut off text placed after hashtags or other non-alphanumeric characters).

Voucher sites

If not otherwise clear from the overall context and presentation, promotional offers on ‘voucher’, ‘free goods’, and ‘deals’ websites which include affiliate links should be obviously identifiable as advertising (Pepper Deals Ltd t/a HotUKDeals, 18 March 2020).

Where all the promotional offers presented include an affiliate link, the website as a whole should make clear the nature of the content and ensure that it does not misleadingly imply that the website is ‘independent’ or has merely collated the deals for no financial incentive.  This will need to be obvious to anyone visiting the website, and marketers should not rely only on explanations in ‘About Us’, ‘FAQs’ or ‘Terms and Conditions’ pages.

If only some of the promotional offers presented include affiliate links, it needs to be obvious which offers and links are advertising.  Affiliate marketers are free to highlight this content however they wish provided it is obvious and could include placing a label, for example ‘Ad’, in or around the title of the relevant offers (Pepper Deals Ltd t/a HotUKDeals, 18 March 2020).

Take care with the content

It’s important to remember that, because affiliate marketing falls within the scope of the CAP Code, all the relevant rules will apply to the content and it therefore should not, amongst other things, mislead materially or cause serious or widespread offence.

Advertisers should also bear in mind that allowing their affiliates to have free rein over the content of ads does not excuse them from the responsibility of ensuring that the advertising is compliant with the CAP Code. The ASA has ruled that both the business and the affiliate marketer are responsible under the Code notwithstanding the fact that the ads may have been created solely by the affiliate rather than by the business themselves (GTMC Inc, 31 July 2013; LifeStyle Advantage Ltd t/a Essence of Argan, 6 March 2013; JC Inc t/a justcloud.com, 27 March 2013).

Similarly, as primary responsibility for observing the Code falls on marketers, promotions run by affiliates that do not adhere to the Code will be problematic (Flamingo Intervest Ltd t/a Ziinga.com, 27 February 2013).

Relying on affiliates to correctly target ads does not mean that the brand itself relinquishes responsibility for the promotion of its product (WHG (International) Ltd t/a William Hill, 19 June 2019). A gambling ad that was mistakenly sent by an affiliate marketer to a child was complained about and investigated. Although the brand contended that the affiliate marketer was responsible for the administrative error that caused the child to receive a gambling promotion, the ASA upheld the complaint and the brand was named in the ruling (Club Website Ltd, 8 January 2014).

See also ‘Remit: General’, ‘Remit: Own websites’, ‘Remit: Social media’, ‘Remit: Search engines and price comparison websites’, ‘Video blogs: Scenarios’.

 

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