Are you able to recognise when something is being advertised to you? In most cases this will be obvious from the situation: TV commercial breaks, magazine advertisements and billboards on the side of the road. With the advent of YouTube and the huge variety of social media channels, advertising has come a long way from slogans, taglines and catchy jingles – creating digital marketing by stealth. A case in point is the recent opinion of the Advertising Standards Agency (ASA) in relation to a complaint that had been made against Mondelez UK Ltd with regard to the promotion of Oreo biscuits in video blogs (or “vlogs”).

Mondelez paid a number of UK vloggers to film a video promoting Oreo biscuits and the ASA held that Mondelez had breached the Committee of Advertising Practice Rules on the identifiably of marketing communications by doing so. The videos had stylistic differences and they been made by the respective vloggers but it was held that, regardless of this, Mondelez had editorial control, the determining factor in deciding that these videos were advertisements and that this needed to be clear to the public.

It is entirely acceptable for content creators online (whether via vlogs or twitter or Facebook or any other social media channel) to accept money in exchange for advertising products and this is, in fact, an area of huge growth where, for example, the most popular vloggers in the UK have millions of subscribers and have racked up hundreds of millions of views on their video channels. However, as upheld by this recent ASA decision, advertisers, and by extension the vloggers publishing the videos, have a duty to indicate clearly that such videos are advertisements.

One vlogger had included a statement in the video description saying “Thanks to Oreo for making this video possible!" which was not enough to put viewers on notice. Instead, the ASA held that notice about advertising has to be provided to the viewer before they are provided with any such marketing content. Furthermore, it is not enough to insert advertorial disclaimers in the description box of a video since a viewer has to go through the extra step of opening the text description.

Advertisements can be distinguished from a situation where a vlogger receives free products from a company and makes a review video. This is because in an honest product review the editorial control is still held by the vlogger. This changes where vloggers are paid to say good things about a product and it is against UK advertising regulations to mislead others by appearing to write as a consumer if that is not the case. 

Vloggers gain popularity by creating personable and honest video content. When paying for sponsored videos, an advertiser should engage the vlogger on contractual terms which outline the manner and timing of the advertising disclosures and include, amongst other things, clear termination rights in the event of any action which is considered by the advertiser to be in any way damaging to the advertiser's brand(s), product(s) or service(s).