Five YouTube videos from vloggers, all of which featured Oreo biscuits:
a. A video titled "Dan and Phil LICK RACE" on the channel 'AmazingPhil' featured two vloggers, Phil Lester and Dan Howell. Lester stated, "Hey guys, so I was checking my emails the other day ... Then in my actual inbox I saw [caption: ‘Hello from Oreo!’] 'Hello Phil, from Oreo'. They sent me this email asking me to take part in an Oreo lick race to settle a long standing dispute with a friend. Now, I had no idea what a lick race was, but they offered to send me free Double-Stuff Oreos, so I said 'Yes'." At this point Lester held up two packets of biscuits and said, "As you all know me, I will say 'Yes' to anything involving free food." He then held up the product which was highlighted with an illuminating effect. The vloggers then took part in the 'Lick Race', during which the name of the product was mentioned repeatedly. After the race, Lester stated, "Make sure you check out the Oreo site in the description, as they've asked some other YouTubers to take part."
Text beneath the video, revealed when a 'show more' button was pressed, stated "Check out the Oreo site for more licking action [LINK] ...Thanks to Oreo for making this video possible!".
b. A video titled "LICK RACE CHALLENGE" on the channel 'Emma Blackery' featured two vloggers, Emma Blackery and Luke Cutforth. At the beginning of the video Blackery stated, "So, recently I was contacted by the guys over at Oreo and they have sent me some of their new biscuits, which is the Oreo Double-Stuff" and held up a packet of biscuits and Cutforth then held a packet between his teeth. Blackery continued, stating, "Oreo have asked us to do a lick for it challenge" and explaining what this entailed before both vloggers took part in the challenge. The vloggers then discussed which other channel-owner should take part in the challenge and nominated 'TomSka', asking viewers to leave comments asking him to do so. Blackery then stated, "There is a link down in the description to all the videos in this Lick Racey thingy thing."
Text beneath the video stated "Luke and I were asked to have a race involving messy things, pain and a whole lot of Oreos! (click below)". Further text, revealed when a 'show more' button was pressed, stated "Check out the other Lick Race challenges [LINK] ... Be sure to comment on TomSka's videos so we can pester him to do the challenge ... Thanks to Oreo for helping make this video happen!".
c. A video titled "OREO LICK RACE WOAH (feat. emmablackery)" on the channel 'DarkSquidge' started with footage of the vlogger Tom Ridgewell watching the end of ad (b) where the vloggers encouraged viewers to comment on 'TomSka's videos, interspersed with user comments referring to the 'Lick Race'. The video then cut to Ridgewell and Emma Blackery preparing to take part in the race. Ridgewell stated, "We're here to do an Oreo Lick Race, which I'm super excited about." Blackery then repeatedly explained the rules before walking out in frustration. Ridgewell then stated "Hey you - I hope you enjoyed our Lick Race video thingy, I know I did ... you can click the link in the description to watch a playlist of other people's lick race videos, 'cause why not?"
Text beneath the video, revealed when a 'show more' button was pressed, stated "More Oreo lick race thingies [LINK]".
d. A video titled "Takeout Robbery" on the channel 'TomSka', also featuring Tom Ridgewell, featured a sketch about a telephone robbing a pizza shop. While making demands of the shop employee, the phone character stated "And don't forget the pizza ... I want pepperoni on it, and pineapple, and Oreos too", and when making further demands to the police stated, "I want a million pounds and a helicopter, and put Oreos on it." At the end of the video a voice-over stated, "Hey you - I wanna thank Oreo for making this video possible and you can check out my extremely stupid Oreo Lick Race 'here'" and a link appeared to ad (c).
Text beneath the video, revealed when a 'show more' button was pressed, stated "OREO LICK RACE WOAH: [LINK] ... A huge thanks to Oreo for making this video possible! Check out my Oreo lick race and more here: [LINK]".
e. A video titled "Elemental Cookies" on the channel 'KickThePj' featured the vlogger PJ Liguori meeting his future self and being challenged to a 'Lick Race'. Oreo biscuits appeared in front of the characters and a genie stated, "These are not but mere cookies, child - these are fate-sealing cylinders ... You will be pitted against each other in an ultimate Oreos lick race, of course." The characters then took part in the 'Lick Race'. At the end of the video one of the characters stated, "Well, hello there YouTube. This was our video for the Oreo's Lick For It campaign ... You know what they say - double the stuff, double your fun! Oh, some of my best YouTube friends and best YouTube nemeses have also made videos for the campaign. You can watch them if you click on the link in the description."
Text beneath the video, revealed when a 'show more' button was pressed, stated "check out my friends [sic] lick race videos! [LINK] ... Thanks to Oreo for making this possible [LINK]".
The complainant, a BBC journalist, challenged whether the ads were obviously identifiable as marketing communications.
Mondelez UK Ltd said that they had not intended to mislead consumers. They stated that the vloggers had been engaged to create ads on behalf of Oreo, that each was paid and provided with the product for use in the video. They provided a copy of the initial brief given to the vloggers, which stated that it should be made clear to the audience that they were working with Oreo for the creation of the videos. Mondelez said that the standard practice on YouTube was to put an acknowledgement in the description box, but that theirown internal policy was that an in-video acknowledgement was necessary. They stated that each vlogger referred to the fact that they had been working with Oreo, that the vloggers made reference to others who had produced Lick Race videos for viewers to review, and that the description boxes under each ad stated that the video had been created with Oreo. Mondelez further stated that they thought the inclusion of the acknowledgement at the end of the content did not render it unidentifiable as an ad. They considered that, taking these elements into account, it was sufficiently clear to consumers that the videos were ads. Mondelez noted that comments under the videos showed that viewers understood Oreo had sponsored the videos, with one in particular saying "'our friends at oreo [sic]' means they got paid", and that they had not received any consumer enquiries, which suggested to them that consumers understood that the videos were advertisements.
The ASA noted that all the ads contained references to Oreos and other Lick Race videos, and that ads (a), (b), (d) and (e) stated variations of "Thanks to Oreo for making this video possible" in the video description box and/or as part of the video itself. We also noted that ads (a), (b) and (e) either mentioned contact with Oreo or that the video was part of a campaign. We considered that these references may have implied to some viewers that Oreo had been involved in the creation and funding of the videos and provided the product free of charge to the vloggers. However, we noted that the CAP Code required ads to be obviously identifiable as marketing communications. We considered that this should apply to the general audience of the ad and considered 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. Although we acknowledged Mondelez's contention that comments made by some viewers indicated that they understood a financial arrangement may have been in place, this did not demonstrate either that the videos had been identified by these viewers as ads specifically (as opposed to, for example, material that had been financially sponsored, but over which the creator retained editorial control), or that the audience more generally would have readily identified the commercial intent of the videos before engaging with the content.
We noted that the presentation of each ad was very much in keeping with the editorial content of the respective channels and that the fact that the videos were marketing communications would therefore not be immediately clear from the style alone. We considered that the disclosure statements used, such as "Thanks to Oreo for making this video possible", either in the video or in the text descriptions, were insufficient to make clear the marketing nature of the videos because, although they might indicate to some viewers that Oreo had been involved in the process, they did not clearly indicate that there was a commercial relationship between the advertiser and the vloggers (i.e. that the advertiser had paid for and had editorial control over the videos). Similarly, although the videos for ads (a) and (b) and the initial video description of ad (b) contained early references to contact with Oreo and a request to carry out the Lick Race, these also did not clarify the extent of the advertisers' involvement. Moreover, we noted that ads (a), (b), (d) and (e) only contained specific disclosure statements at the end of the video or in a text description that had to be opened by the viewer. Therefore, even had the disclosure statements been of a type that made the nature of the video clear, the fact that they would only be heard at the end of the videos or seen after consumer interaction with the video description, meant that they would have been insufficient to render the ads obviously identifiable as marketing communications, as the consumer had already engaged with the video. In addition, ad (c) contained no specific mentions of Oreo's involvement in the ad beyond oblique product references and a link to other Lick Race videos. Because the statements did not fully establish the commercial intent of the videos, and because no disclosures were made before consumer engagement with the material, we concluded that the ads were not obviously identifiable as marketing communications.
The ads breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.4 2.4 Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature". (Recognition of marketing communications).
The ads must not appear again in their current form. We told Mondelez UK Ltd to ensure that future ads in this medium made their commercial intent clear prior to consumer engagement.