Social influencers and gifts: ASA lowers bar for #ad marketing disclosures

Does a social media influencer still need to make an advertising disclosure using #ad when receiving free tickets to an event, even where there is no obligation to post and no contract in place with the relevant sponsor?

The key takeaway

Even if there is no actual obligation to make a post about a gift (here, tickets to Wimbledon), the mere suggestion that the influencer makes a post using a specified hashtag in connection with the gift was enough for the Advertising Standards Authority (ASA) to deem that there was a level of “editorial control” over the post – thereby requiring the need for a #ad marketing disclosure.

The background

Social media influencer and reality TV star Alexandra “Binky” Felstead was invited by Vodafone to attend the prestigious Wimbledon Tennis Championships at the All England Lawn Tennis Club in July 2022. Whilst there was no formal agreement between Felstead and Vodafone, she was given free tickets to the event, accompanied by access to their highly “instagrammable” hospitality suite. This was considered “payment” under the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code). In return, it was hoped that Felstead would utilise this as an opportunity to promote Vodafone on her social media channels. Albeit not a requirement of the free tickets and hospitality access, the PDF provided to Felstead’s agent regarding provision of the tickets simply encouraged guests to share their Wimbledon experience using hashtag #FeelTheConnection and tagging @VodafoneUK. Vodafone’s Head of Social Media and Content Brand Marketing reiterated that there was no expectation for Felstead to post anything on social media during the day, nor did Vodafone have any approval over what Felstead chose to post. This was confirmed by Felstead’s agency. She was not paid by Vodafone nor was she required to post anything on social media. 

Felstead subsequently posted an Instagram post, containing three images: herself and husband, Max Darnton, wearing Vodafone lanyards, in front of a wall made of plants and flowers; herself, again wearing a Vodafone lanyard, pointing at the Vodafone logo on the same plant and flower wall; and herself holding a bowl of Wimbledon’s iconic strawberries and cream, with the Vodafone lanyard in the background. Felstead also posted an Instagram story, containing two images: a bartender pouring a drink, wearing a Vodafone apron; and Felstead in front of the plant and flower wall, with the Vodafone logo. The first image was tagged with @VodafoneUK and #FeelTheConnection, with a location marker for Wimbledon.

The ASA decision

A complaint was made on the grounds that the Instagram post and story were not clearly identifiable as marketing communications for Vodafone. The ASA agreed and banned Felstead from using the posts again, warning her and Vodafone that any future social media marketing of this nature must be obviously identifiable as such, for example by utilising the hashtag #ad in posts, in a prominent and clear way, so that they comply with the CAP Code. 

Why is this important?

Ensuring that social media posts created for the purpose of marketing communications are explicitly identifiable as such is nothing new. The ASA, and indeed the Competition and Markets Authority (CMA), have been banging this drum for years. What is new, however, is the ASA’s broad interpretation of “editorial control” which allows it to treat as within its remit any content that previously may have been within the CMA’s remit only. The mere suggestion of posting using a specified hashtag (#FeelTheConnection and @VodafoneUK) was enough in this case to bring the content within the classic definition of an advertorial (payment plus editorial control) and therefore bring it within the remit of the ASA. In practice what this means is that influencer gifting no longer occupies a grey area where a #ad disclosure ought to be made but the chances of enforcement action being taken are slim (the CMA is not active on a day-to-day basis enforcing influencer disclosures). It is also a sharp reminder to follow the CMA guidance on this topic, which was published in November 2022 and was the first time the regulators had expressly provided guidance indicating that even in gifting situations, a #ad (rather than #gifted or other kind of disclosure) should be used – see our Winter 2023 Snapshot on the CMA’s guidance on influencer marketing.

Any practical tips?

Influencers and brands alike must err on the side of caution when producing social media marketing content. The ASA’s “An Influencer’s Guide to making clear that ads are ads” provides comprehensive advice for social media influencers to ensure any posts with the purpose of promoting a brand or product are clearly identifiable. 

In short, influencers should ensure that the hashtag #ad is clear and prominent within any social media post which is intended as a marketing communication – and to look to do this even where that post relates to a pure gift (ie there is no obligation on the influencer to make a post about it). This ruling reminds brands and social influencers alike of the need to take a very cautious approach to advertising disclosures, with the safest course being to use #ad in almost every promotional scenario.

Spring 2023