Who: The Advertising Standards Authority (ASA), Supreme CBD Ltd, John Hartson, Anthony Fowler and Matt Le Tissier
Where: United Kingdom
When: 14 February 2024
Law stated as at: 14 February 2024
What happened:
The ASA’s Supreme CBD ruling concerned four social media posts by John Hartson, Anthony Fowler and Matt Le Tissier seen on 5 February, 6February and 15 May 2023. The posts all promoted Supreme CBD products and contained claims that these products could cure various conditions such as insomnia, anxiety, depression, aches and pains. The posts contained phrases such as “they are honestly magic”, “they help you sleep so much better with less anxiety”, “tell your Mrs I’ll buy her a box to help with her anxiety”, “These gummies people are just telling me how well they are sleeping after taking these, helps a lot with the anxiety as does the oils”, “People are saying how these things are changing their lives” and “I’ve been very sceptical of a lot of things including @supreme_cbd when it was first recommended to me, but it’s honestly a game changer for people with anxiety/depression any aches/pain or insomnia” as well asresponses containing similar statements to various social media users who had commented on the posts asking whether the product could help with these conditions.
The complainants in this instance challenged whether the posts by John Hartson and Matt Le Tissier were obviously identifiable as marketing communications (given that both were brand ambassadors for Supreme CBD).
In addition, the ASA challenged whether the post by Anthony Fowler was obviously identifiable as a marketing communication (given that he was an owner of Supreme CBD) and whether the claims in all the posts that Supreme CBD products could help with anxiety and insomnia were claims to prevent, treat or cure disease which were in breach of the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code).
In response, Supreme CBD stated that there were no restrictions on what either of John Hartson or Matt Le Tissier could say about the products. In addition, they indicated that they did not have contracts with John Hartson and Matt Le Tissier, other than verbal agreements under which they would receive commission and free products. Supreme CBD also stated that it was not aware that the posts had been making medical claims and said they would refrain from making such claims in the future.
The ASA concluded that all four adverts breached the CAP Code and could not remain in their initial form. In reviewing the adverts, the ASA considered the following issues:
- Marketing communications must be obviously identifiable and make the commercial intention clear to consumers
The ASA considered all of the adverts failed to make the commercial intention clear and breached CAP Code rules 2.1 and 2.3. The ASA concluded that John Hartson and Matt Le Tisier’s individual financial arrangements with Supreme CBD and their role as brand ambassadors was not clear. Similarly, Anthony Fowler had failed to make clear that he was the owner of Supreme CBD when endorsing one of the company’s products.
- Adverts must not state or imply that food can prevent, treat or cure human diseases
The ASA concluded that all of the ads stated or implied a positive correlation between using the products and reduced symptoms of anxiety and insomnia. As a result, all of the ads breached CAP Code rules 15.6 and 15.6.2 and were required to remove this wording.
Why this matters:
This ruling highlights the ASA’s continued strict approach to influencer marketing. Brands and influencers should remember that an informal relationship (for example, a verbal agreement, as was argued in this case) will not mean that the rules in relation to disclosing a commercial relationship do not apply. The test is whether the influencer receives payment or other incentives (for example, free products) from the brand (or is otherwise commercially connected to the brand such as, in this case, being an owner of the business). Therefore, posts should appropriately signal the commercial relationship by including #ad etc.
Separately, while food brands might be permitted to make health and nutrition claims for their products under Regulation (EC) 1924/2006 (subject to the claims and the products fulfilling the relevant criteria), food brands should ensure that they stay in their lane when it comes to the marketing of their products and not stray into making medical claims (for example, claiming to cure or prevent diseases) which are reserved for medicinal products. Brands should also enter into agreements with influencers which contain robust contractual provisions to protect the brand where the influencer strays outside of the law (for example, making unlawful claims about the products).
