5 times the ASA ruled against influencers

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Influencer marketing is on the increase. Marketers are spending more money on this than ever before. If an influencer is paid to promote a product on social media, the commercial relationship between influencer and brand must be disclosed. That’s what the CAP Code says and that’s the test the ASA uses when it investigates complaints, as these high-profile rulings highlight.

  1. Our first example is Marnie Simpson, she of Geordie Shore and Celebrity Big Brother. Earlier this year, a Snapchat snap showed her holding a Diamond Whites teeth-whitening product. The text flagged a discount and a link, but there was no disclosure that it was a sponsored snap. Diamond Whites argued that Marnie’s followers knew she was a face of the brand so she didn’t need to disclose that through a hashtag. However, the ASA decided that the snap was a marketing communication and should have been clearly labelled as such.
    In a very similar case, Ms Simpson snapchatted a pic of herself wearing contacts from her I Spy Eyes lenses range. The ASA’s conclusion was very similar, too. (I’ve written more about Marnie’s misdemeanours here.)
  2. Then we have makeup blogger Sheikhbeauty, who posted on Instagram extolling the virtues of Flat Tummy Tea and mentioning a Black Friday/Cyber Monday 2016 discount to her thousands of followers. The post was unlike her usual posts, which tended to focus on her face rather than a product, but it didn’t disclose that it was a marketing communication via an identifier such as #ad, and the ASA upheld the complaint against Sheikhbeauty and Nomad Choice, purveyors of the tea.
  3. And then there’s TV presenter AJ Odudu, apparently best known for co-presenting Big Brother spin-off programmes in 2013. Fast-forward to 2016 and she was contracted to take part in launch activities for Alpro Go On, a non-dairy yoghurt. She duly tweeted a pic of herself holding the blackcurrant flavour with the text “FAVE summer snack vibes @Alpro_UK … #Alpro #GoOn”. Alpro stated it believed the tweet was editorial not marketing, but the ASA disagreed. Again, disclosing the commercial relationship with an #ad identifier would have avoided reputational damage to the brand.
  4. Next up is former Made In Chelsea girl Millie Mackintosh. In 2015 she posted a video on Instagram which ended with a promotion for Britvic’s J20 Spritz. Although the closing shot contained a disclosure, the ASA stated that consumers needed to know upfront that they were viewing marketing content. The final caption also included the hashtag #sp, but the ASA concluded that it wasn’t accurate enough and people wouldn’t necessarily realise that it mean ‘sponsored’. This was an Instagram video, but now there are 280 characters available on Twitter, brands have no excuse for spelling hashtags, and terms and conditions, out in full, as I explained here.
  5. Finally, the landmark case on social media influencer disclosure was back in 2014 when the ASA upheld a complaint against Mondelez, which owns the Oreo brand, and five vloggers – Phil Lester, Dan Howell, Emma Blackery, Luke Cutforth and Tom Ridgewell – who posted videos on their YouTube channels in which they took part in the ‘Oreo Lick Race’.
    Although disclosure statements such as “Thanks to Oreo for making this video possible” appeared in the videos or text descriptions, and the ASA did acknowledge that some viewers might have understood that Oreo had paid the bloggers to make what were effectively ads for its cookies, it decided that there was no clear disclosure of a commercial relationship between the vloggers and Oreo. What the CAP Code says is that ads must be obviously identifiable as marketing communications, which these videos weren’t.

And when the ASA didn’t rule against influencers

The ASA doesn’t always uphold complaints against influencers, though. In four tweets, which appeared in quick succession in 2012, Rio Ferdinand and Katie Price made out-of-character references to unlikely topics – knitting in Rio’s case and economics in Katie’s. A fifth tweet, which followed soon after, included a picture of a Snickers bar and the text ‘“You’re not you when you’re hungry @snickersUk#hungry#spon”.

Although the ASA concluded that the first four tweets in each set were marketing communications, it accepted that consumers would only have realised this on reading the fifth tweet, which featured the product and #spon to disclose that it was a sponsored tweet. The ASA did not uphold the complaint against Rio, Katie and Mars, which must have been a relief for them, but it should be noted that the context was very specific.

As this round-up of rulings shows, when you’re working with social media influencers it can be hard to ensure the proper disclosures are made. Fortunately, Prizeology can help you stay on the right side of the CAP Code and the ASA. Contact us via hello@prizeology.com if you’d like to hear more.

Sarah Burns is Prizeology’s Chief Prizeologist, an IPM Board Director, and a SCAMbassador for National Trading Standards Scams Team.

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