Can you rely on a long-standing commercial relationship as evidence that media content is "obviously identifiable" as marketing material?

ASA Ruling on Diamond Whites

The facts 

Geordie Shore TV star Marnie Simpson released an image within her Snapchat story in which  she held a Diamond Whites tooth polish product close to her face. Text on the snap stated  "50% off everything from Diamond Whites! Swipe up [heart emoji]" and "www.diamondwhites.co.uk". 

The complaint 

The complainant challenged whether the advertisement was obviously identifiable as a  marketing communication. 

The response 

Diamond Whites highlighted that Ms Simpson had been the face of their brand for nearly two  years and regularly spoke and posted about them. They therefore believed that her followers  were aware of the commercial relationship, so the posts did not require hashtags etc.  However, they said they would look to put those in place in the future. 

Diamond Whites refused to disclose the information requested by the ASA about the  contractual relationship with Marnie on the basis of confidentiality. 

The decision 

Without Diamond White's contract with Ms Simpson, the ASA did not know whether she was  explicitly obliged to publicise that particular promotion. However, they decided that even if the  contract was silent on that point, the snap was nonetheless directly related to her general  promotional activity for the company.

Therefore, the ASA found that the snap was a marketing  communication and thus fell within their remit. In any case, Diamond Whites had not disputed  this point.  The ASA further found that, because the snap was created by Ms Simpson for Diamond  Whites, it was the company's responsibility to ensure that promotional activity was compliant  with the CAP Code. 

When considering the crux of the complaint, the ASA noted that ads must be obviously  identifiable, not just identifiable. The ASA considered that the snap was distinguishable from  Ms Simpson's usual snaps of her personal/social life, and that the promotional offer text and  inclusion of Diamond White’s website URL may indicate a commercial relationship between  the parties. However, they did not think that any other content or context of the snap made it  clear that it was advertising rather than genuinely independent editorial content. 

Further, though noting Diamond Whites’ view that Ms Simpson’s followers would be aware of  their commercial relationship, the ASA considered that it would not be clear to all Snapchat  users, particularly those new to the app. 

For all those reasons, the ASA concluded that the snap breached the Code. 

Why is it important?

It is interesting that even if there was no explicit agreement between the parties on this  promotion, the same result would (apparently) have been reached. This implies a pretty  significant burden on companies to ensure that individuals known to endorse their product  always use the appropriate hashtags etc. 

It is also notable that the ASA took the perspective of what is "obviously identifiable" marketing  material from the perspective of a naïve Snapchat user as opposed to the average Snapchat  user, or the average Ms Simpson follower. 

Any practical tips? 

If the ASA maintains that all publications related to a product which are created by an  individual known to endorse that product constitute marketing communications, then  guidelines or contractual provisions stipulating the use of hashtags etc. may be advisable. 

This decision illustrates the benefit of Snapchat as a means of advertising. Unlike other forms  of media, the post was gone within 24 hours. This meant that Diamond Whites did not have to  remedy the advert itself, they only committed to ensuring that all appropriate hashtags etc.  were used in the future.