How ASA and CMA rules change a UK creator discovery brief

What to take away

Where the CAP Code and CMA endorsement guidance meet a discovery brief

A discovery brief is a procurement document. It decides who gets paid, on what terms, with what evidence. That makes it a compliance document too, because the rules attach to the campaign, not to the platform you found the creator on.

Two regimes apply. The CAP Code, written and enforced by the Advertising Standards Authority, covers how ads are identified (Section 2, Recognition, including rule 2.1) and whether claims mislead (Section 3, Misleading advertising). The CMA online endorsement guidance covers the consumer law duty to disclose paid promotion, which sits in the Consumer Protection from Unfair Trading Regulations 2008, with direct CMA enforcement added by the Digital Markets, Competition and Consumers Act 2024. Both bite at the point of shortlisting, not at the point of posting.

The practical consequence is that a brief has to ask compliance questions before it asks creative ones. Ask about reach first and you will shortlist creators who cannot label a post correctly.

This is why advertising checks for creator campaigns belong in the discovery stage. Fixing a mislabelled post after publication means a correction, an apology and a permanent public record.

The CAP Code's recognisability rule (2.1) and the misleading-claims rules in Section 3 are the starting point for any brief that names creators. You can read them in full in the Non-broadcast Code.

Discovery platforms rarely surface any of this. Tools such as CreatorIQ, Modash and Upfluence rank creators by engagement, audience fit and cost per view. Compliance is usually a filter you have to add yourself, or a field you have to ask the creator to complete.

Write the brief so that a creator who cannot evidence disclosure is removed from the shortlist. That single rule does more work than a page of policy language.

The recognisability test: what ASA expects before a creator is shortlisted

The test is simple to state. An ad must be obviously identifiable as an ad. The ASA does not ask whether the creator meant to deceive, or whether the audience probably worked it out.

It asks whether a reasonable viewer, scrolling past, would recognise the content as advertising. If the answer is no, the post breaches the CAP Code.

Three things usually fail that test. A label buried under a platform's "more" fold. A label written as a hashtag that reads like a hobby tag. A caption that mentions a brand only as a passing interest.

Labels such as #ad and #advert work because they are unambiguous. "Thanks to X" and "in collaboration with" are weaker and have been treated as insufficient where the commercial relationship is not otherwise clear.

Platform tools matter here. Instagram's paid partnership label and TikTok's branded content toggle help, but they do not replace a clear label in the caption. Both should appear where a platform offers both.

The ASA publishes upheld cases, and disclosure failures are among the most common. Before a shortlist is signed off, search the ASA rulings database for the recognition rules in Section 2 and by sector, so you can see how the test has been applied to creators in your category.

For a discovery brief, this converts into a question with a yes or no answer. Has this creator labelled paid content correctly in the last twelve months, and can you show it?

A creator with a clean labelling history is worth more to a regulated brand than a creator with a higher engagement rate and a ruling against their name. Build that preference into the scoring.

Affiliate links, testimonials and endorsement evidence in the CAP Code

Affiliate content is advertising when the creator is paid for it, whether that payment is a commission, a free product or a discount code. The CAP Code applies to the claim, and the disclosure duty applies to the relationship.

Three patterns cause most of the trouble.

Each of these is a misleading-claims problem as well as a disclosure problem. The CAP Code requires that claims be substantiated, and the advertiser carries that burden, not the creator.

For a discovery brief, this means asking about affiliate arrangements in writing. Which networks, which links, which commission structures, and whether the creator will disclose them in the same post.

Gifting is the greyest area. A free product with no conditions and no expectation of coverage is generally not an ad. A free product sent with a brief, a deadline or a request for coverage usually is.

If your brief asks for coverage, treat the content as advertising and label it. Do not rely on the creator to decide where the line sits.

Record the answer in the creator's file. A creator who runs undisclosed affiliate links is a compliance risk regardless of how well the campaign performs.

A written disclosure policy that covers editorial status, incentives and AI use gives you something to point to when a creator asks what you expect.

CMA online endorsement duties and the unfair commercial practices framework

The CMA's position is that failing to disclose a paid endorsement is a misleading commercial practice under the Consumer Protection from Unfair Trading Regulations 2008. It is consumer law, not advertising self-regulation, and it can lead to court action or, under the Digital Markets, Competition and Consumers Act 2024, to a penalty decided by the CMA itself.

The duty sits with the brand as well as the creator. If you paid for the endorsement, you are responsible for making sure it is disclosed. The CMA's guidance for content creators sets out what disclosure should look like in practice.

Three principles run through it. Disclosure must be clear. It must be prominent. It must appear before the audience engages with the content, not after.

The wider framework is the unfair commercial practices guidance, which explains how misleading omissions and misleading actions are treated under consumer protection law.

For a discovery brief, the CMA layer adds an evidence duty that the CAP Code alone does not. You need to be able to show what the creator was told, when, and what they agreed to.

That means written instructions, a signed acknowledgement and a record of the final caption. Screenshots of the live post belong in the file.

Payment terms also matter. Where a creator is paid in product, commission or a fee, the brief should say so plainly and require the same disclosure in every format: video, story, caption and pinned comment.

Platforms change their labelling tools regularly. Do not assume last year's instructions still produce a compliant post. Re-check the label on the first piece of content and correct before the campaign scales.

A step-by-step brief template with ad-labelling and disclosure gates

Use this sequence for every campaign. Each step ends in a gate: nothing moves forward until the gate is passed.

Run the same checklist against each creator on the longlist, not just the winner. It is faster to rule people out early than to renegotiate after selection.

A worked example makes the gates concrete. A Midlands skincare brand briefs a Manchester creator on a paid reel. The brief states a fee plus commission, requires #ad in the first line of the caption, requires the platform's paid partnership label, and lists two claims about hydration that the brand has clinical summaries for.

The creator submits the edit. The approver checks the label is visible without tapping "more", checks the claims against the summaries, and checks the affiliate link carries disclosure. All three pass, so the reel goes live and the file is closed.

If any gate fails, the fix is editorial, not legal. Rewrite the caption, re-cut the opening seconds, or add the missing disclosure. Do not publish and correct later.

Evidence fields to record for each shortlisted creator

A shortlist is only as good as the fields behind it. Record the same data for every creator so comparisons are fair and audits are quick.

The fields below cover the compliance questions the CAP Code and CMA guidance raise. Add them to your platform's creator record or keep them in a shared sheet.

Field	What to record	Why it matters

Two of these deserve more attention than they usually get. Disclosure history is the strongest predictor of future compliance, because labelling is a habit rather than a decision.

Audience data is the other. Platform metrics alone are weak evidence, and inflated reach claims are a recurring problem in UK creator marketing. Where you can, cross-check against an official dataset such as the Office for National Statistics' internet access and use statistics rather than accepting screenshots.

Company-level checks matter where the creator trades through a limited company. A Companies House search confirms the entity exists, who the directors are, and whether the latest confirmation statement (CS01) and accounts are up to date.

For tax, HMRC treats fees, gifts and affiliate income as taxable where the creator is trading, and self-assessment obligations sit with the creator. Your brief does not need to police that, but a creator who cannot describe their trading status is usually disorganised elsewhere.

Where the campaign involves audience data or direct marketing, the Information Commissioner's Office sets the rules under UK GDPR, and controllers generally have to pay the ICO's data protection fee and appear on its register of fee payers. Consent for marketing messages is separate from consent to be advertised to.

Keep the fields current. A creator's disclosure history from three years ago tells you less than the last six months.

A procurement checklist built around evidence gaps and hold rules turns these fields into a decision, rather than a folder of notes.

Escalation routes: ASA rulings, sanctions and Trading Standards referrals

Most campaigns never reach enforcement. The ones that do follow a predictable path, and knowing it changes how you write the brief.

A complaint goes to the ASA, which assesses the ad against the CAP Code. If the ASA upholds the complaint, it publishes a ruling naming the advertiser and the creator, and requires the ad to be amended or withdrawn.

The ASA has no statutory power to fine. Its sanctions are publication, adverse publicity, withdrawal of the ad, and referral to other bodies. For a brand, the ruling itself is the penalty: it is permanent, searchable and quotable.

Where the issue is a breach of consumer law rather than the Code, the CMA or Trading Standards can act under the Consumer Protection from Unfair Trading Regulations 2008. Since the Digital Markets, Competition and Consumers Act 2024, the CMA can decide an infringement itself and impose a penalty without going to court, which is why undisclosed endorsements are treated seriously.

The practical point for a discovery brief is that escalation is avoidable at the shortlisting stage. A creator with a clean record and a habit of labelling is unlikely to produce a ruling.

Where the ASA has already ruled against a creator, treat that as a red flag unless the breach was minor, isolated and clearly corrected. Document the decision either way.

For campaigns with novel formats, unfamiliar claims or a new platform, use the ASA's Copy Advice pre-clearance service before the brief goes out. It is confidential, and it is far cheaper than a published ruling.

Finally, keep the compliance reasoning with the campaign file. If a complaint arrives, a documented brief with signed acknowledgements is the difference between a quick resolution and a long one.

UK advertising recognition rules apply across England, Scotland, Wales and Northern Ireland without variation, so a brief written for a London campaign transfers to Glasgow, Cardiff or Belfast with the same gates intact.

Common questions

Does the CAP Code apply to gifted products?

It applies where there is an advertisement, which usually means the brand had some control over the content or expected coverage. A free product with no conditions and no expectation of a post is generally not an ad.

Who is responsible if a creator fails to label a paid post?

The brand and the creator can both be held responsible. The CAP Code places duties on the advertiser, and the CMA expects the brand to ensure the endorsement is disclosed.

Can a platform's paid partnership label replace #ad?

Not on its own. The label should be clear in the caption as well, because platform tools are not always visible to every viewer or in every format.

Do affiliate links need disclosure if the creator bought the product themselves?

Yes, where the creator earns commission. The commission is a commercial relationship and the audience needs to know before they click.

How often should creator evidence be refreshed?

At least every six months, and always before a new campaign. Labelling habits, affiliate arrangements and platform tools all change.

Can the ASA fine a brand for a disclosure breach?

No. The ASA publishes rulings and requires ads to be withdrawn. Financial penalties arise through consumer law enforcement by the CMA or Trading Standards, not through the ASA.