The rapid rise of social media in recent years has opened-up a fresh medium for advertisers, who have been keen to tap into the mass markets made available through YouTube, Twitter and other social media outlets.
One type of marketing practice that has become popular on social media sites is so-called 'native advertising', which is the name is given to advertising content that 'blends in' with the content of the online platform.
Native advertising is advantageous from the marketer's point of view because it is thought the target audience will not 'tune out' in the same was as they may do with conventional broadcast and print advertisements.
However promoters should be aware that native advertising is regulated by the Advertising Standards Authority (ASA), which will step in if it believes that advertisers are engaging in a form of stealth advertising.
As a general rule of thumb, if a consumer does not realise what they are viewing is in fact an advertisement, the promotion will be considered misleading.
Mondelez ruling (YouTube)
The ASA made its stance clear in its recent ruling against Mondelez UK's Oreos cookie promotion. Mondelez had approached five popular YouTube video bloggers (or 'vloggers') and paid them to promote Oreos during their web broadcast.
Each web broadcast included a segment whereby the vlogger demonstrated and encouraged viewers to participate in a 'Lick Race' challenge in which people compete to lick cream off an Oreo cookie as quickly as possible.
The problem was that the lick race was not the vloggers' idea, they had in fact been paid by Mondelez to include the segment. In the ASA's eyes, the segment should therefore have been clearly identified as a promotion.
The steps taken by the vloggers to identify the promotion were deemed to be insufficient. The ASA concluded that the average consumer might not know that the vloggers had been paid by the Modelez, and that the vloggers had in fact sacrificed an element of editorial content to Mondelez.
Nike ruling (Twitter)
The Mondelez ruling builds on a previously well-publicised native advertising ruling against Nike in relation to the promotional tweets of two footballers: Wayne Rooney and Jack Wilshere. Both footballers tweeted personal messages and included a link to a Nike 'make it count' campaign.
The ASA considered there was nothing obvious in the tweets to indicate they were Nike marketing communications. It was felt the average consumer could be misled into thinking the footballers were personally endorsing the Nike campaign when in fact they had been paid to make the tweets.
Making native advertising compliant
When it comes to native advertising and personal endorsements, it is vital to get the balance right. When things backfire, as they did with Mondelez and Nike, the implication is that the promoter has been trying to mislead consumers with stealth advertising. This clearly has serious reputational consequences and will instantly undo any of the benefits of running the promotion in the first place.
The key is taking into account ASA guidance to strike the right balance and produce a promotion that feels natural but which at the same time does not run the risk of breaching advertising rules.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.
TLT LLP is a limited liability partnership registered in England & Wales number OC 308658 whose registered office is at One Redcliff Street, Bristol BS1 6TP England. A list of members (all of whom are solicitors or lawyers) can be inspected by visiting the People section of this website. TLT LLP is authorised and regulated by the Solicitors Regulation Authority under number 406297.