A recent campaign on Twitter featured the Snickers bar and various celebrities including Rio Ferdinand, Katie Price and Ian Botham. But did the tweets follow the Office of Fair Trading’s advice and the CAP Code or were fellow Twitter users being grievously misled? Tom Harding follows the tweets.
Topic: Social media
Who: Rio Ferdinand, Katie Price, Ian Botham & others and Mars
When: January 2012
Where: London
Law stated as at: 6 February 2012
What happened:
As readers of marketinglaw.co.uk will no doubt be aware, social media is becoming a staple channel for marketers, including of course the use of Twitter. And as has already long been the case in the US, using celebrity endorsement as part of Twitter promotions is also becoming more prevalent.
For those non-footballers amongst you, Rio Ferdinand is a respected Manchester United and England player who has almost 2 million followers (being therefore in the Twitter sense, the UK's most popular footballer). To his credit, Rios's Tweets are (as the stereotype may suggest otherwise) typically informed and engaging and span a range of issues.
It was with some bemusement therefore that his legion of followers recently received various Rio Tweets about knitting and 'needing some more wool'; not the normal patter of things at all. The apparent mystery was soon solved for the Tweet faithful, however, when the series of messages ended with a photo of Rio eating a Snickers Bar; nothing other than a promotion for the snack therefore.
Any suspicions that his account had been hacked in order to send these were also soon put to rest when Tweets were made by Katie Price, Ian Botham and others, pointing to an organised marketing campaign.
The reaction
Rio's followers were not themselves pleased, with some responding 'Do you really need the money that badly' and 'I am not on here to be advertised at'. But it is perhaps the regulators' reaction that should probably be of more concern to Mars (the company behind Snickers) than any Twitter backlash backlash.
Not disclosing that a Tweet has been (we assume) paid for or remunerated is likely to be in breach of the Consumer Protection from Unfair Trading Regulations 2008 ("CPRs"). The key provisions which are likely to be relevant are firstly Regulation 3(4)(b), which provides that 'misleading omissions' constitute unfair commercial practices and are therefore in breach of the CPRs and carry penalties; failing to disclose that editorial content had been paid for (or is otherwise remunerated) might well depending on the circumstances constitute a ‘misleading omission’.
The second provision which could also be relevant here is Paragraph 11 of Schedule 1, providing that an unfair commercial practice will be committed where a trader uses 'editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)'.
So, on the face of it, Rio's tweets may fall foul of the CRPs, as it was not clear from his intial Tweets that they were (we assume) paid for.
The Office of Fair Trading also made it clear in early February 2011 that it would be keeping an eye out for paid-for celeb Tweets which were not all they seemed and taking action where appropriate. See the marketinglaw report here.
The ASA-enforced CAP Code also potentially applies as since March 2011 it has applied to marketing communications in non paid-for space online under an advertiser's control. One relevant CAP Code rule is at 2.1 and reads:
"Marketing communications must be obviously identifiable as such."
The US picture
In the US, identification of promoted celebrity Tweets has been achieved by the use of ‘ad/spon’ short form disclosures at the start of them. These disclosures have been driven by updated Federal Trade Commission ("FTC") guidelines to existing legislation (the 'Guides Concerning the Use of Endorsements and Testimonials in Advertising'). The FTC guidelines expressly reference the role of celebrity endorsers of products and services, and state that celebrities have a duty to disclose their relationships with advertisers when making endorsements outside the context of traditional advertisements, such as in social media. The effect of this has been extremely successful in compliance terms; 'paid for' or influenced blogs and Tweets in the US are now typically highlighted by the 'ad/spon' disclosure as a matter of course.
The consequences
Here in the UK Unfortunately for Mars and Rio, no ‘ad/spon’ or similar disclosures were made at the start of his Tweets, but so far no UK regulator has called for this. We understand that as result of formal complaints, an ASA investigation is therefore now underway.
Why this matters:
As marketers and agencies look to involve more celebrity endorsements as part of their campaigns, care must be taken to ensure CPR and CAP Code compliance as it seems cleat that this is an area that will receive more and more attention.
Compliance itself is not in reality that difficult, and as above can generally be achieved with short disclosures, but marketers should ensure this is in place every time, or both regulatory and PR consequences could blight the campaigns.
