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Product: Food & Non-Alcoholic Beverages
Advertiser: Hello Fresh
Influencer: Nikki Whelan
Medium: Online – Influencer’s Social Media Account, Social Media
ASAI Code 7th Edition: 3.31, 3.32, 4.1, 4.4
An Instagram story on the influencer’s account on behalf of the advertisers included a discount code for their followers.
Both images stated in large black text “Hello Fresh”
A link was placed on one image which stated: “Order Your Meals Here”
One image included the text: “Use code HELLONIKKI for up to €75 off your first 3 boxes”
in white font against a text box with a black background.
The influencer’s profile picture and handle appeared in the top left-hand corner of the screen.
The complainant considered that the content was advertising material, however, they did not consider that it had been marked as an advert.
The advertisers said that they were committed to ensuring full compliance with the ASAI Code. They said that they advertise their products through a number of channels and the influencer was booked to provide influencer advertiser services through a third-party agency. They said that they understand that most influencer marketing content appears alongside or within organic content and was presented in a very similar style in order to engage viewers, so it may not be immediately obvious to the audience when something is or isn’t an advertisement from the context alone. In view of this, their contracts with their third-party marketing agencies for the provisions of influencer marketing services held the provision that requires the content creator to comply with all advertising laws and regulations, including the provisions of the Code. They said that this requirement, and specifically the obligation to explicitly label content as an advert in a way that consumers understand, was also set out in the creative briefs provided to the content creators.
The advertisers said that they required content creators to include a prominent label (whether in a caption, title, on an image or video) with clear, easy to understand language that the particular post is an advert, e.g., “Ad”, “Advert”, “Advertising”, “Advertisement” or “Paid Advertisement”. They said that currently, they required their influencer marketing team to review content before it was published. They said that these controls meant that their influencer marketing content was generally compliant with the relevant provisions of the Code, and they were sorry that this content was not double checked before going live. In light of this, they have raised this complaint with their influencer marketing team, the agency and the creator to ensure they are aware of the importance of these obligations and they will ensure that their creative briefs provided to influencers are updated to be more explicit insofar as creators are prohibited from using unclear terminology such as “Spon”, “Sponsored”, ‘Ad-Gifted” or “Gifted”. They said that they would also specify that where advertising content spans across several posts that content creators are required to label each relevant post in the series, particularly where posts can be viewed separately.
Finally, they said that they are reviewing their review and approval to process to ensure that breaches of this nature do not happen again by either (i) only reviewing the final form content with the text included to ensure that it includes a positive identifier that it is an advert, or (ii) where HelloFresh reviewing the content is not possible for any reason, obtain written confirmation from the marketing agency who has booked the talent that each particular post or story includes clear wording to demonstrate the post is an advert.
The influencer provided a copy of the two screenshots stating that they had included the disclosure ‘Ad’ in the top left-hand corner.
The ASAI Executive compared the published images with that provided by the influencer and noted the images provided by the influencer did not include the onscreen features of Instagram such as the profile picture, ‘send message’ and ‘arrow’ symbols. As the onscreen features were not included in the images provided by the influencer, the “Ad” disclosure was not covered by the profile picture, whereas in the published images, the “Ad” disclosure was not visible as it had been covered by the profile picture.
The Executive also noted the font colour and size used for the disclosure in comparison to the other text on screen. In the pre-publication images, “Ad” was in white text and the background in one image was also light in colour, with low contrast between the word and the background. In contrast, white text against a black background was used for text highlighting the discount code.
The Complaints Committee considered the detail of the complaint and the influencer and advertisers’ responses.
The Complaints Committee reviewed the pre- and post-publication images, noting that the post-publication images had included the onscreen features, such as the profile picture. The Committee referred to the requirements of the Code that a marketing communication should be designed and presented in such a way that it is clear that it is a marketing communication. While the Committee noted the inclusion of the word “Ad” in the pre- publication images, as it had been placed in the top left-hand corner of the screen, on publication it had been hidden from view by the profile picture. The Committee considered that the Code requirement did not just apply to the inclusion of a notification, but also to how clear the notification was. As the notification was not clear in this case, the Committee did not consider that the advertising was in compliance with Code Sections
3.31 and 4.1 of the Code.
The advertisement should not reappear in its current form.
The Committee welcomed the steps taken by the advertisers in the matter and they reminded both parties to consider the placement and clarity of notifications when declaring content as a marketing communication.