Who: Advertising Standards Authority (“ASA”), Alpro (UK) Ltd (“Alpro”)
Where: UK
When: 21 September 2016
What happened:
In its assessment of a recently upheld complaint against a tweet, the ASA has shed further light on the way in which it distinguishes editorial content from marketing communications via social media and the manner in which such marketing communications should be clearly identified.
Over the summer, TV presenter AJ Odudu tweeted “FAVE summer snack vibes @Alpro_UK … #Alpro #GoOn” alongside a close-up photo of a blackcurrent Alpro Go On pot in AJ Odudu’s hand. The ASA received a complaint that the tweet was not clearly identifiable as a marketing communication and, in its adjudication, the ASA very clearly set out the way it assesses such content against the CAP Code.
Editorial content vs marketing communications
Firstly the ASA determined whether the tweet would be classified as editorial content or a marketing communication. To do this, it uses the following two part test:
- Was there was a commercial relationship (which can involve payment or entering into a reciprocal arrangement) between the advertiser and the influencer? Here, Alpro and Ms Odudu did indeed enter into a financial arrangement and so this part of the test was easily satisfied
- Does the advertiser have a degree of control over the content of the communication?
Applying this, the ASA decided that Alpro did have a degree of control and interestingly decided that the following factors set out in their agreement were evidence of this:
(a) the presence of a non-compete clause (prohibiting Ms Odudu from working with Alpro’s competitors) within the agreement between Ms Odudu and Alpro;
(b) the fact that Alpro would be the sole owner of the intellectual property rights of materials accrued through the promotion (which the ASA felt demonstrated Alpro’s “general control of, and responsibility for, Ms Odudu’s tweet”); and
(c) The tweets were drafted by Ms Odudu but were based on key messages provided by Alpro and therefore this demonstrated that Alpro had control of the general messaging in the tweet and had the opportunity to request that this is edited if the post did not reflect those messaging requirements.
Identifying marketing communications
If the answer to the two points above is yes then the content will be a marketing communication and, as such, comes within the remit of the CAP Code. Secondly, the ASA then decided whether the tweet was clearly identifiable as such. When assessing how marketing communications should be identified, the ASA noted that Ms Odudu had included Alpro’s Twitter handle and campaign hashtags however no other clear identifier (such as #ad) had been used. Interestingly, the ASA noted that the tweet was in a similar ‘voice’ to her other tweets and so merely including the Twitter handle and relevant hashtags was not enough to call this out as being an ad. The ASA felt that it was not obviously identifiable as a marketing communication both to Ms Odudu’s own Twitter followers and other visitors to her feed and therefore upheld the complaint.
Why this matters:
We’ve recently reported on the increasing pressure on celebrity influencers to clearly disclose marketing communications and so this adjudication is timely.
The test set out by the ASA gives a really useful insight into factors the ASA may consider relevant. It shows that, when entering into agreements with influencers, brands should be aware that the following will be seen by the ASA as an indication that the brand has editorial control over content:
(a) Non-compete clauses
Whilst arguably, the presence of a non-compete clause doesn’t necessarily show control over the content of a specific post (because surely few influencers would mention a brand’s competitors in paid-for tweets!) this shows that care should be taken with such clauses. The ASA has shown that it is looking at the bigger picture and decided that Alpro exercised a degree of editorial control over the content of Ms Odudu’s social media activity as a whole, rather than focusing just on that individual tweet.
(b) Retaining intellectual property rights in the content
(c) Approval rights over the content of the posts themselves
Even despite the fact that Ms Odudu wrote the posts herself (in order to keep the tone consistent), the ASA still noted that the agency had to approve such posts before publication and this demonstrated a degree of control. However, usefully the ASA did say that it would not consider for example, a general specification that obscene language should not be used, as amounting to editorial control, which should give brands some comfort.
In terms of looking at identifiers, the ASA noted that there is a line to be drawn here. Whilst tagging the Twitter handle of the brand and including relevant hashtags has, in some previous cases, been sufficient for identifying posts as marketing communication, if the post is in the same ‘tone’ as the other tweets then this may not be sufficient. This is clearly quite subjective, and brands may wish to err on the side of caution and ensure that such posts do contain clear identifiers such as #ad.
