Consumers are no strangers to seeing products and services endorsed or promoted on popular social media platforms by high-profile celebrities. Most celebrities have hundreds of thousands (and in some cases, millions) of followers with whom they are able to communicate instantly and in real time. This marketing opportunity has not gone unnoticed by brand owners and advertisers seeking to reach a targeted audience quickly and easily, enabling them at the same time to cash in on the image and reputation of the popular celebrity in order to create a positive association with their brand. Indeed, it has become almost a staple part of a modern sponsorship arrangement to require a certain number of sponsored ‘tweets’ from a celebrity.
It sounds like a win-win for the brand owner and celebrity alike but, due to the personal nature of social media, it is not always clear to the consumer whether a celebrity is commenting on a branded product or service because they are under a contractual obligation to so do or because of their sincere and genuine appreciation for it.
This issue has recently attracted some attention in the US where it has been reported that the Federal Trade Commission (FTC) has criticised a large number of brand endorsers’ Instagram posts as they did not 'clearly and conspicuously disclose their relationships to brands when promoting or endorsing products through social media.' The FTC guidelines provide that any connection that might affect the weight or credibility that consumers give the endorsement should be clearly and conspicuously disclosed. A material connection could be a business or family relationship, monetary payment, or the gift of a free product.
So what is the position in the UK? Essentially, social media advertisers must comply with the Committee of Advertising Practice's code on advertising (the CAP Code). Many sponsors and celebrity endorsers fail to appreciate that the CAP Code has been extended to cover promotional messages on companies’ own websites and the social media pages under their control. Therefore, companies must comply with the provisions of the CAP Code when running promotions on their own social media pages and when using celebrities to make claims about their products. To put it another way, celebrity endorsements on social media will generally be viewed as marketing communications within the remit of the
Advertising Standards Authority (ASA), the independent advertising regulator that ensures compliance with the CAP Code.
This does not mean that advertisers are prevented from using celebrities to endorse products and services on social media platforms. It simply requires transparency on the part of celebrities to clarify to consumers when endorsements are (paid for) marketing communications rather than personal messages.
Whilst complying with the CAP Code, advertisers and brand owners should also bear in mind that a one-size-fits-all approach across all social media platforms is not appropriate, as most platforms have their own (differing) rules regarding endorsements.
Twitter allows commercial messages, and recent rulings by the ASA involving some famous brands have clarified that one way for a business to identify a tweet as a marketing communication is to require its brand endorsers to include either '#ad' or '#spon' in the sponsored post. The ASA dismissed complaints about promotional tweets by Katie Price and Rio Ferdinand, paid for by Mars, which included 'You’re not you when you’re hungry @snickersUk #hungry #spon', as it was satisfied that #spon was sufficiently prominent to make the tweets 'obviously identifiable' as marketing communications and therefore compliant with the CAP Code. By contrast, a few months later, the ASA upheld a similar complaint relating to a Twitter-based campaign run by Nike where Wayne Rooney was paid to make promotional tweets, including: 'My resolution – to start the year as a champion, and finish it as a champion… #makeitcountgonike.me/makeitcount'. The ASA found that the Nike sponsored tweets were not obviously identifiable as promotional messages for which Rooney was paid.
Facebook, however, takes a different stance and advertisers should be aware that Facebook’s terms of service prohibit users from posting unauthorised commercial communications at all. As such, advertisers should not consider paying celebrities to promote products or services on their personal Facebook pages regardless of whether they disclose the commercial nature of the communication or not.
Take home message: always seek legal advice for wading into the murky water of brand endorsement on social media. If you think you could benefit from advice from Stobbs concerning your social media campaign, do not hesitate to get in touch.
Advertising / Celebrity / Commercial Contracts
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