Don’t be a rule-breaker on social media

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Rule-breakers: A recent ASA ruling has highlighted the widespread problem of celebrities and bloggers breaking the rules when it comes to promoting brands on social media. Complaints were made concerning a tweet posted about Alpro yoghurt by TV presenter AJ Odudu to her 25,000 followers that didn’t identify the tweet as a paid for commercial message or #ad.

#ad sponsored posts

The ASA found that Ms Odudu had a contract with Alpro to publish a number of social media posts over a period of time and concluded that since the ad was presented in a similar ‘voice’ to her other tweets it wasn’t clear to consumers that the tweet was in fact a marketing communication and not her own opinion. In addition, under the terms of the contract, Alpro were the sole owner of all copyright for material created throughout the promotion and therefore responsible for Ms Odudu’s social media messages and therefore liable for the breach. The outcome resulted in a lot of negative press for the Alpro brand.

CAP Code rules 2.1 and 2.4 specify that marketers must clearly mark advertorials or paid for marketing. However, a lot of brands don’t seem to be aware of the rules or care that they are breaking the rules.  And things are getting tougher….the Competitions and Markets Authority (CMA) recently proved that they are willing lay down the law against advertisers who mislead consumers. They secured an undertaking from marketing agency Social Chain who were found to have run 19 campaigns that were not disclosed as advertising across Twitter, Instagram and YouTube accounts with a combined reach of 4m followers. The CMA also wrote to the 15 brands and 43 ‘social media personalities’ involved warning them that advertising that is not clearly labelled is a breach of consumer protection law and could result in a prosecution. Social Chain agreed undertakings to ensure all future advertising that it posts or arranges will be clearly labelled.

The problem is even greater in the United States where a single 140 character tweet can be worth tens of thousands of dollars to celebrities such as Justin Bieber or Kim Kardashian. An investigation by consumer non-profit organisation Truth in Advertising has found hundreds of instances where Kardashian family members had posted about brands such as Puma, Calvin Klein and Balmain to a combined audience of over 300m without disclosing they were paid for ads.

The Federal Trade Commission’s Bu#ad instagram postsreau of Consumer Protection take a dim view of these activities stating that ‘consumers have the right to know if reviewers are providing their own opinions or paid sales pitches” and have issued consent orders to brands such as Warner Brothers and Sony which carry the force of law and can result in civil penalties.

The bottom line is that although it is not illegal to pay people to endorse products, the brands and media agencies involved need to make sure that the consumer knows when something is paid for otherwise they could be breaking the law.

So what can you do to avoid getting your brand into trouble? Here are our five top tips for brands when it comes to social media.

  1. If you pay for it, it’s an ad.  Content that is controlled by the marketer (i.e. the brand or agency) rather than the ‘influencer’ and is provided in exchange for payment is an advert and must be labelled as such according to the CAP Code.
  2. Caution, even if it’s free. Someone reviewing an item given to them for free, and in return for nothing, is not formally covered by the CAP Code but the Competitions and Markets Authority believes that consumers need to know if an influencer has in effect been influenced whether it is by a financial or otherwise,  so best to label it accordingly.
  3. Product placement also counts. So for instance if a chef is filming a YouTube cookery tutorial with a set of expensive pans they should let their viewers know if they have been paid to use them.
  4. Be literal. If you are providing content to an influencer – like Alpro did for AJ Odudu – then it is your responsibility to provide clear instructions on how paid-for content needs to be identified by the person posting it. The buck stops with the brand – not the influencer.
  5. Get trained. Update all of your marketing team’s training materials and internal policies to reflect that identifying paid for marketing communications is in fact the law and that it covers anything from tweets, Facebook posts, Instagram images, vlogs, blogs to online articles too.

To find out more about ensuring your campaign complies with the law, talk to PromoVeritas. We are global experts at helping to shape and implement promotions for all types of brands all over the world, legally and fairly. Call Gemma Cutting on +44(0)3325 6000 or email info@promoveritas.com

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