Introduction

Video blogging (“vlogging”), YouTube and other video-hosting websites, has become an easy and sometimes lucrative channel for members of the public people to create and share their own content.  Many video bloggers (“vloggers”) have become online sensations, some commanding several million followers.  Vlogs are therefore a great opportunity for advertisers wishing to tap into a large audience.  However, advertisers need to ensure that they do not blur the line between editorial and advertising content. 

The ASA recently upheld a complaint against, Outbrain, a provider of online advertising that looked like editorial content (so-called “native advertising”) (click here).  It has now issued an adjudication emphasising that vlogs must be obviously identifiable as marketing communications.   

Facts

Following a complaint against Mondelez, the ASA considered whether five YouTube videos from vloggers which featured Oreo biscuits, and invited the vloggers to take the “Oreo Lick Race Challenge”, were clearly identifiable as marketing communications. 

Each of the videos was tailored to the style of the YouTube channel that they appeared on. The general format of the videos consisted of the vloggers explaining that they had been contacted by Oreo and had been sent free Oreo biscuits as well as an invitation to undertake the Oreo Lick Race Challenge.  The videos featured and mentioned the Oreo biscuits several times and often ended with the vloggers participating in the challenge and then inviting another vlogger to undertake it. 

At the end of each video, the relevant vlogger indicated that there was a link in the description box beneath the video.  Text beneath the videos provided a link to the other vlogs within the Oreo Lick Race Challenge collection and, for four of the five videos, the text ended with variations of “…huge thanks to Oreo for making this video happen”. 

Although Mondelez did not receive any complaints from consumers, a BBC journalist challenged whether it had been made sufficiently clear that the vlogs were marketing communications. 

Mondelez’s Response

Mondelez explained that they had indeed engaged and paid the vloggers to create the ads for Oreo.  The brief given to the vloggers did state that the vlogs should make clear that they were working with Oreo. 

In Mondelez’s opinion, they had taken enough steps to ensure that the videos were sufficiently identifiable as adverts.  For example, each vlogger made reference to other videos within the Oreo Lick Race Challenge, the videos themselves included an acknowledgement at the end, and the description box beneath the video stated that the video had been created with Oreo.  The fact that viewers had commented that it was likely that the vloggers got paid to do the videos further demonstrated, Mondelez argued, that the viewers did recognise them as marketing communications.   

In addition, Mondelez pointed out that their own internal policy of including an in-video acknowledgement of Oreo’s involvement went above and beyond YouTube standard practice, which was to only put an acknowledgment in the description box beneath the video. 

The ASA’s ruling

The ASA upheld the complaint.  The ASA acknowledged the steps that Mondelez had taken and considered that these did imply that Oreo had been involved in the creation and funding of the videos and that the Oreos featured in the video had been given to the vloggers for free.

However, the ASA emphasised that online video channels were usually editorial based and as such, any marketing intent should be made clear to viewers before they engage with the content.  Even if comments from viewers suggested that they recognised that there was some financial arrangement in place, this did not imply that they identified the vlogs as marketing communications specifically.  They could, for example, have thought that the vlogs had been sponsored by Oreo financially but with the creators still retaining editorial control.  Also, the ASA did not consider the comments to be sufficient evidence to suggest that viewers generally would have recognised the vlogs as marketing communications.  

The ASA also said that as the editorial content of the vlogs was in the style of the specific YouTube channel in question, it was not immediately apparent that they were marketing communications.  This was not helped by the disclosure statements used (i.e. the variations of “Thanks to Oreo for making these videos happen”) as, although they indicated Oreo’s involvement in the process, they did not explicitly set out the commercial relationship between Oreo (as the advertiser) and the vloggers.

Finally the ASA noted that, even if the disclosure statements had clearly indicated the commercial relationship between Oreo and the vloggers, the fact that they appeared at the end of the vlog or in a text description that had to be opened meant that the consumer would have to engage with the video before realising that it was a marketing communication. 

Comment

The ASA’s ruling was based on two particular factors; firstly the timing of the disclosure statement informing the viewer of Oreo’s involvement and secondly, the fact that, even though the vlogs mentioned Oreo’s involvement, the disclosure statements did not adequately disclose the commercial relationship between Mondelez, as the advertiser, and the vloggers.      

Following the decision the ASA issued guidance on video blogs which can be found here.  Advertisers who are planning to enter into advertising relationships with vloggers should ensure that viewers are informed that the video is a marketing communication before they engage with the content.  Viewers need to know whether they are selecting a marketing communication or editorial content, so that they can make an informed choice about whether to watch the video. Such confusion is likely to be more apparent where, for example, the vlogs are tailored to the style of the YouTube channel in question.    

Secondly, advertisers should ensure that the labelling used is sufficiently clear.  This is to distinguish from circumstances in which a business may financially sponsor the creation of a video but have no control over the editorial content. 

The proliferation of new channels through which members of the public can publish content provides new opportunities for advertisers to engage with consumers at a grass-roots level.  However, advertisers must take care to ensure that their advertising does not give the misleading impression that it is a word of mouth endorsement when in fact it is paid for content.  Following the Outbrain adjudication on “native advertising”, it is clear that this is a matter of significant concern for the ASA.  Advertisers would be wise to exercise caution and have their ads thoroughly cleared before proceeding.