Confusion remains around ‘less healthy food’ restrictions and influencer advertising

From October 1, the industry is encouraged to comply with new regulations ahead of them being properly enforced by the Advertising Standards Authority from January 5. Not understanding the guidelines is therefore a brand safety risk that could have a significant impact on an influencer’s reputation.

If you are a brand with a product that falls into one of the 13 LHF categories and you have a commercial relationship with an influencer, whether that’s an existing commercial relationship or you have worked together in the past, that influencer will no longer be able to promote your products in the same way.

From October 1, influencers cannot name or show the product, in its packaging or out, if the product is recognizable. Gifting is considered a commercial relationship and would not be compliant. Organic is allowed, but if there is any current or previous commercial relationship between the brand and the influencer, that would also fall foul of the rules.

Organic posting is expected to become a gray area where the regulator might find it harder to assess the case. As a precaution, brands working with influencers should proactively be telling them not to post anything about their products that fall within the LHF categories.

HFSS v LHF

Much of the confusion has to do with what falls under existing HFSS (products high in fat, salt and sugar) advertising restrictions and what comes under the new LHF rules. Not all HFSS products are LHF products as LHF rules only apply to the 13 named categories. HFSS is an existing regulation that specifically applies to advertising targeting under-16s, whereas LHF applies to all ads regardless of who they are aimed at.

HFSS

• No paid promotions featuring anyone under 16, whether they are an influencer, actor or brand ambassador.

• No paid promotions by an influencer who has more than 25% of their audience aged under 16.

• No ‘overconsumption’ content in paid ads, such as hauls or multiple flavor product trials.

LHF

• An influencer cannot name or show products, in their packaging or out, if recognizable. No illustrations or animations either.

• Organic influencer posts are still allowed, but cannot be boosted with ad spend.

• Brands with fewer than 250 employees are exempt.

• Audio-only ads can mention products.

• Brands can post on their own channels, but are unable to boost content with paid media.

Erring on the side of caution

At Dept, which handles influencer work for PepsiCo’s snack brands, its head of influencer, Tiah Slattery, is already taking a hypervigilant approach. “We’re being extremely cautious at the moment, even if we know it’s a product that’s not going to be impacted, because they keep changing the rules,” she tells The Drum.

Unsure of when the rules would take effect, Dept ensured its recent Cheetos campaign would be compliant with the proposed rules. The campaign avoided product shots entirely, instead partnering with a well-known artist to design a limited-edition T-shirt range, turning a snack product into a fashion accessory. “We did that to be extremely safe, so there’s no over consumption, it’s not really centered around the product and there’s no call to action,” Slattery explains.

As the agency partner, Slattery says it has a “duty of care” to influencers to make sure it isn’t putting them in a position where content is going to be penalized. “If they get this wrong, it can be detrimental to their career,” she says.

Slattery also feels responsible for educating her clients on what these guidelines mean for their influencer campaigns. “Brands are quite apprehensive, outside of LHF/HFSS rules, about making a mistake right now. Brands are on thin ice with what they’re saying, who they’re working with, their opinion on things, being political, not being political enough, so this is this added layer of fear.”

Getting the message out

The Advertising Association’s director of public and external affairs, Chris Walker, tells The Drum that it is aware that “businesses and influencers want to understand how they can best comply with the incoming LHF advertising restrictions from October,” which is why it has joined with other trade bodies, including Isba, the IPA, and IAB UK, to run a cross-industry awareness campaign to help anyone working on Q4 campaigns

Scott Guthrie, the founder of the Influencer Marketing Trade Body (IMTB) and a member of the Committee of Advertising Practice (CAP), the body that developed and will implement the rules, says: “A lot of our members have been asking like crazy what the new rules are and it’s only in the last month we’ve been able to say what the new rules are.”

Guthrie is concerned about how information will be passed on to influencers. “This is a real problem. First, there is the awareness of it all, then the understanding and then complying.” This is why the IMTB is working with the trade bodies on the awareness campaign.

As someone representing the interests of influencer agencies, Guthrie says the most interesting interpretation of the guidelines is that a brand’s owned channels will be exempt. For example, Marks & Spencer could pay an influencer to create an ad for an Easter egg that sits on its own Instagram account because it hasn’t paid for the media spot, just the production of the ad.

Guthrie is also worried that some brands will think they won’t get caught and that the ASA will only go after bigger companies, like Coca-Cola. However, last year the ASA shifted from being the complaints handling department to being more proactive and in the past 12 months has monitored 28m online ads, “​so, the chances of getting found out are high,” he says.

Thinking outside of the category

It’s hard to overstate the effect the guidelines will have on creator marketing as FMCG brands make up such a significant part of its income. Becky Owen of influencer marketing agency Billion Dollar Boy is anticipating that ROI from paid media is going to be “heavily impacted,” but that this will be a short-term issue for brands.

The chief marketing officer says: “While things settle, there will be some shifts in ad spend – everything’s got to find its new equilibrium. Brands have spent however many years proving the effectiveness of this model and have years of data. They’re not going to shift with their eyes closed.”

She says that to soften the impact on the industry, the agency is keen to bring its clients solutions that adhere to the guidance. She shares that Billion Dollar Boy is exploring ways to create ads that lean into brand sentiment and color palettes. “If we can’t show the product, then what is the opportunity? How can we think more laterally about how to talk about these products without talking about them?”

Similar to Dept’s Cheetos campaign, Owen is advising her clients to think outside the food and drink category, a strategy she calls “out-of-category creators.”

“What if you work with an artist instead, or a creator in fashion? Then they’re adjacent and they can give you an opportunity to tell your story in a more innovative way.”

The LHF rules mark one of the most significant shifts in UK advertising regulation in recent years. All parts of the influencer sector should make a start on understanding the rules as success will lie in mastering them, protecting creators and finding fresh, compliant ways to advertise products.