Two TikTok posts on Sevda Ela’s account, @sevda.ela:
a. The first post, seen on 20 April 2023, featured a video of Sevda Ela making herself boiled egg on toast with feta cheese for breakfast. She picked up a can of egg topping and put it on her toast. She did not say where the egg topping can was from and the brand name on the can was not visible. The caption in the post stated, “#egg topping is from @justspices_uk not an AD but I do work with them [love heart emoji].” The Tik Tok account @justspices_uk commented on the video saying, “Not just spicy just super tasty! Code justsevda will get you a little extra something [hearts in eyes emoji].” The comment was in response to a user who asked what egg topping was used and whether it was spicy.
b. The second post, seen on 23 April 2023, featured a video of Sevda Ela eating crumpets for breakfast. She mentioned a list of other foods she had in her breakfast, including sandwich seasoning, which she said was from Just Spices. The caption in the post stated, “#eatwithsevda.”
The complainant challenged whether the posts were obviously identifiable as marketing communications.
Just Spices GmbH did not believe the posts in question were ads.
They had two contracts with Sevda Ela, with the first being effective as of 1 April and the second as of 6 April. Both contracts required Ms Ela to publish one TikTok post in which she promoted the Just Spices brand, in return for a one-off fee for each post. Just Spices said the first post was published on 5 April and the second on 26 April and that both posts were correctly labelled as ads, as per clauses in the contracts which specified posts must be published in accordance with ASA guidance and the CAP Code. They said the fee and the free products for the contracted posts constituted the total payment to Ms Ela.
The two posts, which were the subject of the complaint, were videos posted by Ms Ela on 20 April and 23 April and neither of these was commissioned by the company. The videos were posted voluntarily by Ms Ela who received no fee or commission for them. Just Spices believed the free products did not constitute payment for those two posts and they believed that, because Ms Ela was not paid to post them, they were not ads.
They said the contracts placed no obligation on Ms Ela to positively promote Just Spices on her social media accounts beyond the two posts referenced in each contract. They had no prior knowledge of, nor did they approve the copy of, the two additional posts before they were published by Ms Ela.
Just Spices confirmed their official TikTok account did comment on the video Ms Ela posted on 20 April and acknowledged that may have led viewers to believe the post was sponsored content. Despite commenting on the post, they considered that it was not a marketing communication and therefore did not require an ad label. They said they would review internal procedures to ensure that influencers they worked with made it clear to social media users when a post was an ad.
Sevda Ela confirmed she was an ambassador for Just Spices and that she had been contracted to post two TikTok posts and to clearly label them as ads. She said the videos in question were posted outside of her contractual obligations with Just Spices and that they were videos in which she inadvertently used and referred to Just Spices’ products.
The CAP Code stated that marketing communications must be obviously identifiable as such, and that they must make clear their commercial intent if that was not obvious from the context.
The ASA first assessed whether the posts were marketing communications that fell within the remit of the CAP Code. We understood there was a commercial relationship between Just Spices and Ms Ela which involved two contractual agreements that required her to post two TikTok posts promoting Just Spices products. We were provided with copies of those agreements and acknowledged Just Spices’ comment that those posts had been published on 5 April and 26 April and had been correctly labelled as ads.
We understood that Ms Ela was not required to publish the two TikTok posts on 20 April and 23 April (ad (a) and ad (b)) as part of the contractual agreements and that she did not receive a fee for them.
However, both contracts stated that the agreements between the two parties were effective from 1 April and terminated on 30 April. Therefore, the agreements were active at the time ads (a) and (b) were posted. Furthermore, both contracts stated that Ms Ela would receive Just Spices products for free and we considered that constituted a payment to her. While we understood that Ms Ela had not received a direct payment for the other two posts (ads (a) and (b)), because she had been gifted products as part of ongoing commercial agreements, we considered that those gifted products constituted payment for the posts complained about.
The contracts also stated that she was prohibited from promoting spice mixes from competitor companies and that, during their duration, Ms Ela was required to convey a positive message about Just Spices and its products if discussing the company or using one of their products in social media posts. Although we acknowledged Just Spices’ view that she was only required to portray the company in a positive manner in the contracted social media posts, we noted that the contracts stated she should convey a positive message about Just Spices at all times during the term of the agreements, which therefore included the period during which the other two posts (ads (a) and (b)) were published.
We considered that those two requirements would, in effect, restrict aspects of Ms Ela’s control of her social media content and established that Just Spices had sufficient control over the content of her social media posts, in conjunction with a payment arrangement by way of free products, for the posts on 20 and 23 April (ads (a) and (b)) to be marketing communications that fell within the remit of the CAP Code.
We then considered whether the posts were obviously identifiable as marketing communications and whether they made their commercial intent clear. Ad (a) referred to Just Spices in the caption of the post and ad (b) referred to the company directly in the video. We assessed the posts as they would have appeared in-feed on TikTok and considered that there was nothing in their content, such as “#ad” placed upfront, that made clear to those TikTok users viewing them that they were ads. We considered the caption on ad (a), “#egg topping is from @justspices_uk not an AD but I do work with them” would have added to the impression that the post was not a marketing communication. We concluded that the posts were not obviously identifiable as marketing communications and breached the Code.
The ads breached CAP Code (Edition 12) rules 2.1, 2.3 and 2.4 and (Recognition of marketing communications).
The ads must not appear again in the form complained of. We told Just Spices GmbH and Sevda Ela to ensure that in future their ads were obviously identifiable as marketing communications, for example, by including a clear and prominent identifier such as “#ad”.