Out-Law News 2 min. read

Advertising regulator warns firms over ‘unclear’ commercial content in video blogs

The UK’s advertising watchdog has told companies that they must be “up front and clear” with audiences when products are promoted online, such as in video blogs (vlogs).

The Advertising Standards Authority (ASA) issued the reminder after it censored Mondelez UK Ltd over a vlog on YouTube that featured the firm’s Oreo biscuits.

The vlog involved five YouTube videos, presented by vloggers, “who encouraged viewers to participate in a ‘lick race’ challenge, in which people compete to lick cream off an Oreo cookie as quickly as possible”, the ASA said.

“The problem was the videos didn’t clearly indicate that there was a commercial relationship between the advertiser and the vloggers,” the ASA said. “In this case, because the ads were on online video channels that were usually non-promotional, the commercial intent should have been made clear before viewers clicked on the content.”

Copy clearance expert George Campbell of Pinsent Masons, the law firm behind Out-Law.com, said: "This is a timely reminder from the ASA of the importance of those who operate in the virtual world ensuring that they are upfront and transparent when they are promoting products."

Mondelez told the ASA that it had not intended to mislead consumers. The company said that “the standard practice on YouTube was to put an acknowledgement in the description box”. However, the company’s “own internal policy was that an in-video acknowledgement was necessary”.

Mondelez told the ASA that “each vlogger referred to the fact that they had been working with Oreo, the vloggers made reference to others who had produced lick race videos for viewers to review, and the description boxes under each ad stated that the video had been created with Oreo”. Mondelez said it thought the inclusion of the acknowledgement at the end of the content “did not render it unidentifiable as an ad”.

The ASA said guidance it issued in 2013 noted that “it is perfectly legitimate for vloggers (or bloggers, tweeters etc) to enter into a commercial relationship and be paid to promote a product, service or brand”.

“We’re not here to regulate that relationship or to stop vloggers earning money. But when that commercial relationship is in place then the onus is on the advertiser, and by extension the vlogger, to be upfront about it and clearly disclose the fact that they’re advertising,” the ASA said.

“A key principle of the advertising code is that ads should be obviously identifiable as ads,” the ASA said. “In most cases it’s clear, whether it is on TV, a poster on the side of a bus shelter, in a magazine or newspaper, or online, we know an ad when we see one. This is usually because of the context the ad appears in. Often clearly in advertising space, like the commercial break on TV or it’s sitting entirely on a company’s website. Sometimes, however, it’s not always obvious, in particular on digital media platforms, which is why our ruling involving a series of YouTube videos by vloggers serves as a timely reminder of the importance of advertisers being up front and clear with an audience when they’re advertising to them.”

The ASA said it will be “communicating clearly to advertisers the outcome of this ruling and raising awareness amongst vloggers of the need to disclose when the content of their blogs is paid for”. The ASA said it is also encouraging advertisers or vloggers who are unsure about the rules to take advantage of its free advice and guidance covering sectors including video blogs.

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