Watch out, British influencers. The Advertising Standards Authority (“ASA”) has its eyes on sponsored social media posts and is willing to take action as indicated by a string of recent activity. The latest matter involves "Geordie Shore" and "Celebrity Big Brother" cast member Marnie Simpson. The ASA – an independent regulator of advertising across all media in the United Kingdom – recently called attention to two of Simpson’s Snapchat posts, which the agency says run foul of the UK's advertising rules.
Much like the Federal Trade Commission in the U.S., which works to ensure that the Federal Trade Commission Act and its related guidelines are observed by marketers, the ASA looks to the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (“CAP Code”) to determine whether advertising messages are adequate.
The relevant part of the CAP Code states, “Marketing communications must not mislead the consumer by omitting material information ... Material information is information that the consumer needs to make informed decisions in relation to a product.”
Now enter Simpson, 25, who uploaded images of products from two companies – tooth polish-maker Diamond Whites and Unleashed PR Ltd t/a I Spy Eyes, a contact lens brand – without identifying them as advertisements. The ASA held in two separate proceedings that Simpson’s behavior breached national rules that "prohibit ‘hidden’ advertising on social media.”
The ASA made its decisions public on Wednesday. Of the first instance, it stated that the infringing material consisted of “a Snapchat post by [Simpson], seen on 20 June 2017, which showed an image of Simpson holding a Diamond Whites product close to her face. Text on the snap stated ‘50% off everything from Diamond Whites! Swipe up [Heart emoji]’ and ‘www.diamondwhites.co.’”
In the second instance, the ASA’s report states that it received a complaint that called attention to the fact that “Marnie posted about [I Spy Eyes] lenses and made it clear she was advertising the website for the lenses by pointing people to 'shop' or 'swipe up to buy' or by posting comments in videos and stating that this was ‘her own lens range.’” The ASA noted that “Marnie did not explicitly refer to lenses nor did she mention I Spy Eyes or the website,” and that “most people wouldn't have known the snap was promoting a product and if they did, consumers wouldn't have known what that snap was for or where to go to buy it.”
The ASA held that both instances run afoul of its advertising rules, as they both amount to marketing communications that went undisclosed as such. The ASA stated that in accordance with the CAP Code, “We do not just require ads to be identifiable as marketing communications but that they must be obviously identifiable as such.”
The advertising watchdog found that the two “Snaps which were featured as part of Marnie Simpson’s snapstory … were somewhat distinguishable from her usual snaps which typically featured content from her personal/social life, but insufficiently distinguishable from the rest of her Snapchat content given that [they] lacked any content or context that made clear it was advertising.”
Because the ASA “considered the snaps [to not be] obviously identifiable as a marketing communications, we concluded the [they] breached the CAP Code.”
Diamond Whites attempted to defend its brand-specific promotion by Simpson, arguing that “Simpson's followers would already be aware of her commercial relationship with the firm” because she has served as an ambassador for its brand for nearly two years, but the ASA was not swayed.
As a result, the ASA held that “the ads must not appear again in its current form. We welcomed Diamond Whites’ and I Spy Eyes’ willingness to ensure they will use “#ad” in future. We reiterated their responsibility to ensure that all of the ads they produced were obviously identifiable as marketing communications in future.”
While this is the first case of its kind to have involved Snapchat, the BBC notes that the ASA recently initiated cases involving “a post by the make-up blogger Sheikhbeauty on Instagram promoting Flat Tummy Tea that did not make clear she was being paid by the drinks company; a tweet by the TV presenter AJ Odudu that featured a photo of an Alpro dessert with text describing it as one of her favorite snacks without any disclosure language; and a video uploaded by Made In Chelsea TV star Millie Mackintosh advertising a Britvic drink that used #sp. The ASA said it did not think consumers would realize what the #sp hashtag referred to.”
The ASA does not have the authority within its capacity to penalize those who breach the CAP Code with monetary fines. However, it can refer repeat offenders to the National Trading Standards Institute, which can take further action. Despite its inability to impose fines, though, the ASA has stated that the negative publicity that arises from its interventions should not be underestimated.