ASA rules that ad is not sufficient where influencers also have business interests

The question

Why could Zoe and Huel not rely on a #ad disclosure in ads promoted by the famous entrepreneur, Steven Bartlett?  And what does this mean for brands where the individual featured in their ads has a business interest in them?

The key takeaway

The Advertising Standards Agency (ASA) continues its strict enforcement against influencer marketing with a new ruling against ads for Zoe and Huel which featured Steven Bartlett. The ads included #ad but failed to disclose Bartlett's commercial relationship with the companies. This ruling is a new development to the influencer debate and adds another layer of disclosure where the influencer has a commercial interest in the relevant brand.

The background

Steven Bartlett, a well-known entrepreneur, investor, and television personality from the show "Dragon's Den", has 3.8 million Instagram followers, and hosts the popular podcast "The Diary of a CEO" which has over 7 million subscribers. In February and March 2024, Bartlett appeared in paid-for Facebook ads for two healthcare companies: Zoe Ltd and Huel Ltd. The ASA ruled that the ads were misleading due to the omission of material information regarding his business interests in these companies, even though #ad disclosures had been used in both ads.

Zoe Ltd

The ad featured an image of Bartlett wearing a Zoe patch, a continuous blood glucose monitor, with text reading "If you haven't tried ZOE yet, give it a shot. It might just change your life" followed by his name. #ad was used but there was no disclosure of his commercial interest in Zoe.

Huel Ltd

The ad for Huel's Daily Green Drinks included Bartlett's statement "This is Huel's best product", along with the caption "Ever wondered what Bartlett actually thinks of Huel's Daily Greens? Well there you have it…". Another ad featured two side-by-side videos of Bartlett and another individual discussing Huel products, with text such as "Is Huel actually nice?" to which Bartlett replies "This is the best product that Huel have released". The ad ends with a caption "Steven Bartlett said it first…". Again, #ad was used but no disclosure of his commercial relationship with Huel was made.

The development

Steven Bartlett is an investor in Zoe Ltd and a director of Huel Ltd. Aware of these commercial relationships, complaints were made to the ASA on the basis that the ads were misleading. In response, the companies contended that the posts were clearly marked as ads (using "#Ad"). They further argued that the average consumer would reasonably understand that Bartlett was being paid for his appearance in the ads, making further disclosure unnecessary.

Despite these arguments, the ASA upheld the complaints against both companies. While the ASA acknowledged that the ad were identifiable as marketing communications, it found that consumers were unlikely to be aware of Bartlett's financial interest in the performance of the companies. His role as an investor and director constituted material information necessary for consumers to make informed decisions. As the ASA said: "Because the ads omitted material information about Steven Bartlett [being an investor in Zoe] [as a director at Huel], we concluded they were likely to mislead".  The omission of this information rendered the ads misleading in violation of rules 3.1 and 3.3 of the CAP Code. 

Why is this important?

The ruling reinforces the ASA's stringent approach to influencer marketing. The scope of "material information" is broad, and businesses cannot rely on assumptions that consumers understand influencers are financially compensated for endorsements. Any specific business interests or financial ties must be disclosed in the ad itself, as the ASA sees this information as directly impacting consumers’ perception and decision-making regarding the product.  Moreover, the ASA noted that featuring an individual's name below a quote can appear as a testimonial to consumers, resembling a customer review or independent endorsement. They see this as adding further weight to the need for transparency, noting that this level of transparency is in addition to the normal influencer marketing disclosure (e.g. #ad).

Any practical tips?

#ad was clearly not enough in these cases. The ASA has made it clear that it expects any commercial relationships or interests the influencer holds in a company or product must be explicitly disclosed to avoid misleading consumers. For more guidance on influencer marketing, see our previous Summer 2023 Snapshot where we covered the joint guidance issued by the CMA and CAP. Note that the latter does not address this new point about the disclosure of commercial relationships, as Zoe, Huel and Bartlett himself no doubt found out to their surprise!

Autumn 2024