Affiliate FAQs: Is Affiliate Marketing Legal?

Whilst affiliate marketing is legal and affiliates can earn commission whilst working from home, affiliates must uphold the rules and regulations set by the Advertising Standards Authority (ASA) and the Committee of Advertising Practice (CAP) to ensure advertising is legal, honest, and truthful.

The ASA and CAP see Affiliate Marketing as a joint venture, whereas both parties must ensure there are no rule breaches and therefore, are both held responsible for any wrongdoing.

These rules also apply to the affiliate, but more so to the business, as affiliates are technically sales people in contract with the brand. We recommend taking the time to vet potential affiliates and nail down your terms & conditions over just letting anyone in.

Whilst there are no criminal penalties for wrongdoing from the ASA and CAP, the fines and penalties can gravely damage your reputation and your bank balance. 

Affiliate Marketing Rules and Regulations

The ASA's rules and regulations are quite long, but the ASA's Affiliate Marketing rules can easily be simplified into four rules:

CAP 2.1: Marketing communications must be obviously identifiable as such.

CAP 2.2: Unsolicited e-mail marketing communications must be obviously identifiable as marketing communications without the need to open them

CAP 2.3: 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; marketing communications must make clear their commercial intent, if that is not obvious from the context.

CAP 2.4: Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature".

You can find the full list of ASA rules and regulations on affiliate marketing below or download their infographic on how to follow the rules here.

ASA and CAP tick logos

Click here to read the ASA rules and regulations.

Here's a list of resources to read on Affiliate Marketing best practices from the ASA:

Do the ASA penalise or ban affiliates / influencers?

Yes, the ASA / CAP do have the legal jurisdiction to penalise or ban influencers and affiliates if they do not uphold the rules. In the past 4-years, the ASA and CAP have created a resource board where they post all findings and complaints.

Potentially one of the most notable recent court rulings was Sophie Hinchliffe (Mrs Hinch) and Tesco - who didn't identify marketing promotions as ads on social media.

ASA Ruling on Sophia Hinchliffe t/a Mrs Hinch

The ASA received eight complaints about this ad campaign, with the majority of the rulings being upheld (agreed to) and made Mrs Hinch agree to further rulings on a suspended basis (that basically means it's a slap on the wrist and told she shouldn't break the rules again).

The full actionable wording was:

Ad (a) must not appear again in the form complained of. We told Sophie Hinchliffe to ensure that in future her ads, including those which featured her own Hinch range, were obviously identifiable as marketing communications and made clear their commercial intent upfront, for example, by including a clear and prominent identifier such as “#ad” at a minimum.

Some other interesting ASA rulings:

  • Frank's Ice Cream Ltd - which launched an affiliate campaign stating their 'Ice Cream doesn't have to be off limits for people with diabetes'
  • Lucy Isabella Beauty & Aesthetics - advertised that their new injection of Kenalog (a hay-fever, prescription only medicine) was available to the public, even though Kenalog is a trade marked, private medicine not available to the public

You can find all ASA Rulings on their Rulings section of their site. Just click the image below to go there:

ASA Rulings for Affiliate Marketing