A tweet from the television presenter AJ Odudu’s Twitter account, dated 13 June 2016, stated “FAVE summer snack vibes @Alpro_UK … #Alpro #GoOn”, and included a close-up photo of a blackcurrent Alpro Go On pot in AJ Odudu’s hand.
One complainant challenged whether the ad was obviously identifiable as a marketing communication.
Alpro (UK) Ltd’s agency, responding on behalf of both Alpro and Ms AJ Odudu, confirmed that at the time the tweet was published they believed it to be outside the scope of the CAP Code and for that reason an identifier such as “#ad” had not been included. They acknowledged that the tweet was an ad and gave their assurance that in future they would ensure any similar activities which fell within the remit of the CAP Code would be clearly identified as advertising.
The ASA understood that at the time the tweet was published Alpro believed that Ms Odudu’s tweet would be defined as editorial content and therefore would not fall within the scope of the CAP Code. We therefore first assessed whether the tweet was a marketing communication or editorial content.
The key test as to whether the tweet was an ad was: 1.whether Alpro had paid Ms Odudu or entered a reciprocal arrangement with her; and 2. the degree of control Alpro had over the content of the tweet.
Alpro and Ms Odudu had entered a financial agreement whereby Ms Odudu took part in a campaign to launch Alpro Go On. This involved a range of activities over a three-month period, including a requirement that she publish a specified number of social media posts, for example on Twitter, during a specified timeframe. The contract stipulated that Alpro’s agency would provide Ms Odudu with key messaging and that Ms Odudu would draft the posts herself so that they would be in her own tone; the agency was to have sight of the posts before publication. The contract also 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 the marketing or sales, for competitor products. The contract further stated that Alpro would be the sole owner of all materials that accrued through the performance of the agreement, including copyright and intellectual property rights connected with those materials.
In relation to payment, the contract required Ms Odudu to post on social media in order to receive payment and therefore the tweet would not have been published had there been no arrangement for Alpro to pay Ms Odudu to promote their brand.
With regard to the degree of control Alpro had over the content of the tweet, we considered that the prohibition on Ms Odudu promoting competitors during the Go On campaign 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. As such, Alpro exercised a degree of editorial control over the content of her social media activity, which necessarily included the tweets commissioned by the contract, in the campaign period. While we considered that a general specification that, for example, obscene language should not be used in posts promoting Alpro Go On, would not have gone so far as to comprise editorial control, prohibiting promotion of competitor products went beyond this and represented editorial control of the content by the advertiser. We also considered that the contract’s stipulation that Alpro would be the sole owner of copyright and intellectual property rights of materials accrued through the promotion further demonstrated their general control of, and responsibility for, Ms Odudu’s tweet.
Additionally, while the contract required Ms Odudu to draft her social media posts herself, they were to be based on key messages provided by Alpro. Ms Odudu’s control over the specific wording was primarily to ensure that they were in her own ‘voice’. We considered Alpro therefore had control of the general messaging included in the tweet, and further, noted that the agency was to have sight of posts before publication and would therefore have had the opportunity to request edits if they considered the posts did not reflect the general messaging requirements of the promotion.
We concluded that various aspects of the contractual agreement between Alpro and Ms Odudu established that Alpro had sufficient control over the content of the tweet, in conjunction with a payment arrangement, for it to be considered a marketing communication falling within the remit of the CAP Code.
We therefore next considered whether the ad was obviously identifiable as a marketing communication. The ad was presented in a similar ‘voice’ to Ms Odudu’s other tweets and did not include any clear identifier, such as “#ad”, to demarcate it from her own content. While we noted that the tweet contained the advertiser Twitter handle and campaign hashtags, we did not consider that this would make clear to consumers the commercial intent of the content or the editorial control exercised by the advertiser. We therefore considered that it would not have been obviously identifiable as a marketing communication to Ms Odudu’s Twitter followers and other visitors to her Twitter feed. We.concluded, therefore, that it breached the Code.
We welcomed Alpro’s willingness to ensure that in future any similar ads would be clearly identified as such.
The ad 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 ad must not appear again in the form complained about. We told Alpro (UK) Ltd and Ms Odudu to ensure that their future marketing communications were obviously identifiable as such, for example by including an identifier such as “#ad”.