Rechtsanwalt, Legal Director
Out-Law News | 07 Mar 2012 | 4:45 pm | 3 min. read
Communications law expert Danvers Baillieu of Pinsent Masons, the law firm behind Out-Law.com, said that the ruling could confuse companies using social media channels for marketing.
The Advertising Standards Authority (ASA) has ruled that confectionery company Mars did not break advertising rules when two celebrities participated in a promotional campaign it ran on the micro-blogging site.
Katie Price and Rio Ferdinand posted Twitter messages containing the strap-line for the ad campaign Mars ran for Snickers bars – 'You're not you when you're hungry'. Price and Ferdinand had posted four out of character 'tweets' each prior to posting the strap-line relating to the economy and knitting respectively.
The ASA received two complaints that the tweets were not obviously identifiable as marketing communications, as required by the UK Code of Non-broadcast Advertising, Sales Promotions and Direct Marketing (CAP Code).
Under section two of the CAP Code marketing communications must be "obviously identifiable as such". Marketing communications are required to "make clear their commercial intent" if the context of the material does not make that obvious. Adverts that also " falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession" are prohibited whilst both marketing firms and publishers are required to "make clear" when "advertorials are marketing communications" under the terms of the Code.
Only the fifth and final strap-line messages posted by Price and Ferdinand contained the text "@snickersUk#hungry#spon" flagging the tweets as promotional. Those messages also featured photos of the celebrities holding a Snickers bar. The celebrities had posted all five of their tweets within an hour.
The ASA ruled that the preceding unlabelled tweets had also constituted marketing messages, despite Mars' arguments otherwise, and that the company had not breached the CAP Code.
"Each tweet in the series formed part of an orchestrated advertising campaign, some of which were in turn highlighted on the Snickers Twitter page, and therefore considered those tweets to be part of an overall marketing communication at the point each was posted. We disagreed that the first four tweets became marketing communications only when the fifth tweets were posted," ASA said in its adjudication.
"We noted the first four tweets in each series served as ‘teasers’, which, due to their nature, were likely to generate additional interest in the celebrities’ postings. We also noted those tweets did not make any reference to Snickers or to Mars and were posted in relatively quick succession. In addition, we noted that the fifth ‘reveal’ tweets showed the celebrities with the product and included the text 'You’re not you when you’re hungry @snickersUk #hungry #spon ...' it said.
"We considered the combination of those elements was sufficient to make clear the tweets were advertising and that consumers would then understand each series of tweets was a marketing communication. In that particular context, and given the relevance of the first four tweets to the 'You’re not you when you’re hungry ...' strap line in the ‘reveal’ tweets, we considered it was acceptable that the first four tweets were not individually labelled as being part of the overall marketing communications. We therefore concluded that the ads did not breach the Code," the watchdog ruled.
However, Baillieu said that despite coming to the correct decision, the ASA's reasoning had been wrong and would cause uncertainty over whether future advertising campaigns on Twitter and other social media are within the rules.
“Mars made the reasonable argument that the first four messages were not marketing communications and thus did not require to be marked as such. The ASA could have ruled that only when a ‘tweet’ actively markets a product should you need to flag it up," he said. "In this instance, Ferdinand and Price’s ‘followers’ would have known their messages were out of character but would not have associated it with a marketing campaign until they re-read them in conjunction with the final posting. It is for this reason I also do not believe that the public was misled."
“However, by saying that the lead-up messages were marketing messages but did not need to be labelled, the ASA has created uncertainty over when social media postings need to be labelled as promotions," said Bailieu. "The ruling also somewhat contradicts previous guidance advertising bodies have issued that Twitter users paid to promote products in 'tweets' should be told by marketers to use '#ad' to tell readers about any paid-for promotions."
"This ruling means that companies do not necessarily have to label all marketing messages and therefore I think it will lead to a rush of creativity from advertisers on how to push the boundaries of what constitutes acceptable promotions on social media,” Baillieu said.
Rechtsanwalt, Legal Director