The TV presenter AJ Odudu entered into a contract with Alpro under which Ms Odudu was paid to help launch Alpro Go On including publishing a specified number of social media posts. The ASA received a complaint about the following tweet by Ms Odudu challenging whether it was obviously identifiable as a marketing communication:
“FAVE summer snack vibes @Alpro_UK … #Alpro#GoOn” [with a close-up photo of a blackcurrant Alpro Go On pot in Ms Odudu’s hand]
Was the tweet an ad or editorial content?
The ASA applied its usual test:
- Whether Alpro had paid Ms Odudu or entered into a reciprocal arrangement with her; and
- The degree of control Alpro had over the content of the tweet.
The contract required Ms Odudu to post on social media in order to receive payment and the tweet had clearly therefore been paid for.
The interesting section of the ASA’s ruling concerned the degree of control exercised by Alpro over the content of the tweet. The ASA identified the following key factors:
- The contract stipulated that during the campaign Ms Odudu was not to directly or indirectly participate in paid-for marketing, promotion or sales, or actively participate in marketing or sales, for competitor products. The ASA pointed out this had the effect of restricting aspects of Ms Odudu’s control of her own social media content during the promotion (to the benefit of Alpro) by decreasing the potential for competitor products to be mentioned. This control by Alpro over Ms Odudu’s social media activity necessarily included her tweets for Alpro pursuant to the contract.(The ASA contrasted this with a general specification that, for example, obscene language should not be used in posts promoting Alpro Go On, which would not have amounted to editorial control.)
- Under the contract Alpro was the sole owner of all intellectual property rights in relevant materials such as social media posts. The ASA considered this further demonstrated Alpro’s general control of, and responsibility for, the relevant tweet.
- The contract stipulated that Alpro’s agency would provide Ms Odudu with key messaging but that Ms Odudu would draft the posts herself so that they would be in her own tone. The agency would have sight of the posts before publication. The ASA therefore considered Alpro had control of the general messaging included in the tweet, noting that the agency would have had the opportunity to request edits before publication if they considered the posts did not reflect the general messaging requirements of the promotion.
Alpro had sufficient control over the content of the tweet, in conjunction with a payment arrangement, for it to be considered a marketing communication within the remit of the CAP Code.
Was the ad obviously identifiable as a marketing communication?
Although the tweet contained Alpro’s Twitter handle and campaign hashtags, the ASA did not consider this would make it obvious to consumers that the tweet was a paid-for ad. The tweet was presented in a similar “voice” to Ms Odudu’s other tweets. It did not include any clear identifier, such as “#ad”, to separate it from her own content. The tweet therefore breached the CAP Code.
Conclusion
Paid-for social media posts, where the advertiser exercises control over the content, need to be clearly marked as ads. The ASA recommends “#ad”. Some advertisers think consumers find this off-putting, but the commercial nature of social media posts needs to be obvious or a complaint is likely to be upheld.