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