As Fashionista has previously reported here, the ASA (“Advertising Standards Authority”) takes a strict view on marketing communications in social media and online. The latest ASA ruling on this topic (on 26 November 2014) upheld a complaint made in respect of a series of five YouTube videos uploaded by YouTube “vloggers” (video-bloggers) in relation to the Oreo Lick Race.
Each of the five “vlogs” (video-blogs) complained of featured Mondelez UK Limited’s Oreo biscuits and vloggers embarking on a Lick Race challenge. (To watch the video, click here). Mondelez had engaged the vloggers to produce the videos as advertisements for its Oreo biscuits. Each vlogger was paid and provided with Oreo biscuits for their vlog, and Mondelez had specified that each vlogger should make it clear that they were working with Oreo in relation to their vlog. At least four of the five videos complained of contained statements at the beginning of the vlog which thanked Oreo for providing the biscuits and/or making the video possible.
The videos were challenged (by a BBC journalist) on the basis that it was not obvious that they were marketing communications. The following rules of the CAP Code (the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing) were investigated:
Rule 2.1 – Marketing communications must be obviously identifiable as such.
Rule 2.4 – Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them “advertisement feature”.
The ASA upheld the complaint and ruled that whilst the videos contained references to Oreo and other Lick Race Videos (with a number of the videos thanking Oreo and/or mentioning contact with Oreo), these references were insufficient to make clear that there was a commercial relationship between Mondelez/Oreo and the vloggers “i.e that the advertiser had paid for and had editorial control over the videos”. The ASA held that “…the CAP Code required ads to be obviously identifiable as marketing communications” and that “given that these ads were on online video channels that were usually editorial based, the commercial intent would have needed to be made clear before viewers engaged with the content”.
As a result, the ASA has told Mondelez: (a) to ensure that the advertisements do not appear again in their current form; and (b) to ensure that any future advertisements made through vloggers make the commercial intent of the vlog clear prior to consumer engagement.
Whilst the ASA does not have power to impose penalties, the ASA does have the power to escalate matters to other bodies (such as Trading Standards or Ofcom) for further action on the basis of misleading or unfair advertising. In this regard, it is important to note that the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) contains similar provisions to Rules 2.1 and 2.4 of the CAP code. Under the CPRs, unfair commercial practices are prohibited and this includes “using editorial content in 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)”.
Take away points
Following this case, the ASA has published guidance on its website in relation to video blogs. The three key pieces of advice set out by the ASA are:
1) Advertisements must be obviously identifiable- “…marketers need to ensure the presentation of their ad makes it clear that it is an ad. This is likely to include discussing the issue with the vlogger. If the style doesn’t make the nature of the content clear, then it will need to be separated by some sort of design or labelling.”
2) Labelling must be timely- “Viewers need to know they are selecting an ad to view before they watch it. This means making a distinction between ads and editorial based content so viewers can make an informed choice. Finding out something is an ad after having selected it, at the end of a video or half way through is not sufficient.”
3) Labelling must be clear- “Labels or disclosures don’t necessarily have to be formal, they can match the vlogger’s style, they just need to be clear.”
Fashionista is going to be monitoring her favourite vloggers closely to see whether those who are sponsored admit as much in their videos going forwards!