ASA rules on #ad disclosure for director’s social media posts

The question

Do the ASA’s rules on advertising disclosure extend to directors and other employees posting on social media? Put another way, do posts by directors and employees need to be accompanied by #ad to make the commercial connection clear to consumers?

The key takeaway

The post here was made by Molly-Mae Hague, who is a celebrity of Love Island fame and who is also a creative director for Prettylittlething (PLT). Molly-Mae’s contract requires her to post about PLT, but even so, her position as a director makes it highly likely that she has to make it clear in those posts that there is a form of commercial connection between her and PLT via advertising disclosures.

The background

Influencer Molly-Mae Hague posted a story of herself on her Instagram account wearing a long, brown dress, with the caption “You can actually shop it now on PLT – Couldn’t not make it available for you guys too” along with a link to buy the item. The ASA received a complaint that the story had not made its commercial intent sufficiently clear, due to Molly-Mae’s contractual relationship with PLT.

Molly-Mae has a paid role as Creative Director at PLT and in response to the complaint PLT confirmed that the contractual arrangements in place with her expressly state the requirement to “comply with applicable laws and regulations relating to marketing and advertising”, which includes clearly indicating that promotional posts are paid-for endorsements, typically by using the hashtag “#ad”. Molly-Mae’s Instagram story did not contain any such indication that it was a marketing communication. 

The development

The ASA held that the ad breached the recognition of marketing communications rules in the CAP Code. The ASA first assessed whether or not the post was a marketing communication and if it fell within the remit of the CAP Code. The CAP Code states that marketing communications must be obviously identifiable and must make clear their commercial intent, if it is not obvious from the context. Due to the nature of Molly-Mae’s role as Creative Director within PLT, she was required to post about the company on social media, and the ASA therefore concluded that posts made under that relationship did fall within the limit of the CAP Code. They held that both PLT and Molly Mae were jointly responsible for ensuring that marketing activity conducted on Molly-Mae’s account which promoted PLT was compliant with the CAP Code. The ASA next considered whether the post was obviously identifiable as a marketing communication and made clear its commercial intent. The ASA noted that:

• the story had appeared on Molly-Mae’s own account
• the story did not contain any indication that it was a marketing communication (ie it did not use the required “ad” hashtag), and
• whilst many of Molly-Mae’s followers may have been aware of her role at PLT, many would have also been unaware and it therefore would not be instantly clear to all consumers that she had a commercial interest in PLT from the story itself.

The commercial intent behind the story was therefore “not made clear and upfront”, and the ASA ruled that the ad must not appear again in the form complained of. The ASA understood that the disclosure had been omitted by mistake and had reminded Molly-Mae of the requirements of the CAP Code to prevent any similar mistakes in future. Both PLT and Molly-Mae assured the ASA that similar posts would include a label such as #ad in future which would be prominently displayed, and that the commercial intent behind the post would be clear.

Why is this important?

The ASA must be becoming increasingly exasperated with influencers who continue to fail to get the message about when and how to make an advertising disclosure, especially celebrities like Molly-Mae who have already featured on a regular basis within its rulings. The fact that the twist here is that Molly-Mae was posting not as a paid influencer on a product campaign, but instead in her capacity as a director of PLT, should not have made that much difference. There is a clear commercial connection between her role and her posts promoting products to which that role relates. And adding a clear “#ad” to the post description is not too much of a chore after all.

Any practical tips?

The position on advertising disclosures in the UK is pretty clear when it comes to commercial connections between brand and influencer. Essentially, the bar is very low – such that pretty much any form of commercial connection is going to trigger the need for an advertising disclosure in the form of a clear and prominent display of “#ad”.

On a practical level for the brand’s marketing teams, a rather effective, if obvious, solution is to ensure that someone in the team is keeping a watchful eye on all social media posts made by those on its payroll, be they celebrities, directors or (in Molly-Mae’s case) both.

Autumn 2022