Social faux pas: Brands and celebrities

An Advertising Standards Authority (ASA) ruling in September illustrates that some brands and their agencies are still getting it wrong when it comes to using a celebrity’s social media presence to promote their product.

In its latest ruling on ad disclosure, the ASA has upheld that Alpro (UK) Ltd failed to make clear that tweets by television presenter AJ Odudu were advertising. The offending tweet posted by Odudu in June 2016 stated “FAVE summer snack vibes @Alpro_UK … #Alpro #GoOn”, and included a photo of an Alpro Go On.

Editorial vs Advertorial

It’s hard to see why this case differs from any of the existing rulings on ad disclosure in tweets. Odudu had a commercial relationship with Alpro and was contractually obliged to post promotional tweets. Therefore is seems quite clear that a relevant disclosure should have been included in the tweets.

What’s particularly interesting about this case however is that Alpro tried to defend its position by claiming that the tweet was outside the scope of the CAP Code because it was editorial content published by Odudu. As a result, Alpro contested that an identifier such as “#ad” wasn’t required. Alpro’s seeming reluctance to accept that the tweet was an ad means that we are given a useful insight into the ASA’s application of the payment and control test.

Payment and what?

The ASA’s first priority was to establish if the tweet was editorial or advertising. The ASA’s test is one of payment and control. Essentially, this means that for the tweet to be editorial and fall outside the scope of ASA rules, Alpro needed to prove either a) that there was no reciprocal arrangement in place between Alpro and AJ Odudu, and/or b) that they had no editorial control over the content of the tweet.

Unhidden Talent

As a result the ASA was forced to review the talent contract in order establish the extent of Alpro’s control and whether or not a reciprocal arrangement was in place between the parties. In doing so, it noted that a financial agreement was in place which contracted Odudu to undertake various activities over three months as part of the product launch campaign. This included publishing a number of social media posts within that time frame. The contract also dictated that Alpro’s agency would provide Odudu with key messages to tweet about, albeit Odudu would be responsible for drafting the messages which the agency would review before being tweeted.

There is nothing unusual in this approach. The tweets were drafted by Odudu in order to retain an element of authenticity in the tone of the messages. However, the ASA noted that the contract also prohibited Odudu from promoting other competing products during the campaign period and provided Alpro with the sole copyright in the materials she produced under the agreement, including her tweets. Payment to Odudu was also conditional on her publishing the social media posts.

Losing Control

In arriving at its decision, the ASA determined that even though Odudu controlled how the tweet was written, the restriction placed on Odudu promoting other products during the campaign meant they exercised a degree of editorial control over the content of her social media activity. This was further underpinned by the fact that Alpro acquired the intellectual property in the tweets and dictated the key messages to be communicated and had an opportunity to review and comment on the tweet before it was published.

Having determined that Alpro retained a degree of control over the tweet and that a financial arrangement was in place, the tweet was deemed to be an advertisement and should therefore have included a relevant identifier such as “#ad” to make consumers aware that it was advertising.

Afterthoughts

There can be no doubt that dictating the key messages and the agency having final sight of them before publishing meant that Alpro held a degree of control over the tweet. However, this is the first time we have seen the ASA highlight that a contractual clause prohibiting the talent from promoting other products constitutes an element of control. Brands and agencies will need to bear this in mind if there is an appetite to circumvent ad disclosure requirements on social media by simply sponsoring the talent and leaving them to control content and publishing.

However, it should be noted that while sponsoring a celebrity to create social media content without maintaining any control over what they publish would not be caught by the advertising industry’s self-imposed regulations which are enforced by the ASA, the Competition and Markets Authority (CMA) do not apply a two pronged test. The CMA’s approach requires payment or control, not both. This means that to comply with consumer protection legislation even if there is no control over the content, the nature of the commercial relationship should still be disclosed. Unlike the ASA which sets out its parameters in the form of published notes on the CAP website, CMA guidance is short on detail in respect of how appropriate disclosure might be achieved. The ASA’s interpretation is that the CMA is likely to accept a simple “nod” to the sponsorship arrangement. It is left to brands and agencies to decipher what a simple “nod” might look like. If in doubt, including “#ad” would currently seem to be the safer option.

Please contact Jo Farmer if you require any information or guidance about celebrity endorsements in advertising.