A Snapchat snap by marniegshore, seen on 20 June 2017, showed an image of Marnie Simpson holding a Diamond Whites product close to her face. Text on the snap stated “50% off everything from Diamond Whites! Swipe up [Heart emoji]” and “www.diamondwhites.co”.
The complainant, who believed the snap was a paid-for brand endorsement, challenged whether the ad was obviously identifiable as a marketing communication.
Diamond Whites said Marnie had been the face of their brand for nearly two years and they therefore believed that her followers were aware of the relationship she had with their brand her regular posts and news articles found in the public domain. They provided numerous links to these articles. They said they were unable to disclose the information requested about their contractual relationship with Marnie as it was confidential. They said given the length of the relationship and the fact that Marnie frequently talked about them, they did not feel that the posts required hashtags, etc. However, they said they would look to put those in place in the future.
The ASA considered first whether the snap was a marketing communication and therefore whether it fell within our remit. Diamond Whites did not provide details of the contract or any other relevant evidence for us to clarify the commercial relationship between Diamond Whites and Marnie Simpson. We considered that even if the contract between Diamond Whites and Marnie Simpson did not specifically require or suggest that Marnie Simpson should tweet about Diamond Whites’ promotion, the snap was directly related to her promotional activity for Diamond Whites and therefore the snap formed part of that promotional activity; a reciprocal agreement existed in which Marnie Simpson was contracted to publicise Diamond Whites and the company benefited from her doing so. We concluded the snap was a marketing communication which fell within the ASA's remit. We noted Diamond Whites did not contest that the ad was a marketing communication or that the snap formed part of Diamond Whites’ promotional activity. We considered that because the snap was created by Marnie Simpson for Diamond Whites, it was Diamond Whites’ responsibility to ensure that promotional activity conducted on their behalf was compliant with the CAP Code.
We noted the Code did not just require ads to be identifiable as marketing communications, but that they must be obviously identifiable as such. The snap was featured as part of Marnie Simpson’s snapstory. We considered the snap was distinguishable from her usual snaps which typically featured content from her personal/social life. While we considered the promotional offer text “50% off everything from Diamond Whites!”, the text “swipe up” and the border that included Diamond White’s website URL could give viewers the impression that there might be some commercial relationship between Marnie Simpson and Diamond Whites, we did not consider that any other content or context of the snap made clear that it was advertising, as opposed to, for example, genuinely independent editorial content. Further, although we noted Diamond Whites’ view that Marnie Simpson’s followers would be aware of their commercial relationship, we considered that it was not clear from the snap itself that Marnie Simpson had a commercial relationship with Diamond Whites and therefore it would not be clear to Snapchat users, particularly to those new to Snapchat, that Marnie Simpson had created a snap on Diamond Whites’ behalf.
For these reasons, we considered the snap was not obviously identifiable as a marketing communication. We concluded the snap breached the Code.
The ad breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of marketing communications).
The ad must not appear again in its current form. We welcomed Diamond Whites’ willingness to ensure they will use “#ad” in future. We reiterated their responsibility to ensure that all of the ads they produced were obviously identifiable as marketing communications in future.