Who: Nomad Choice Pty Limited t/a Flat Tummy Tea, Sheikbeauty, Advertising Standards Authority (ASA)

Where: UK

When: 5 April 2017

Law stated as at: 22 May 2017

What happened:

The ASA held that an Instagram post by makeup blogger Sheikbeauty promoted Flat Tummy Tea, and breached the CAP Code by virtue of not being obviously identifiable as a marketing communication.

The post had stated “@flattummytea 20% off guys!!!! If you’ve been following me you’ll know i used this and I genuinely feel less bloated and a flatter tummy … oh yessss”. It did not include “#ad” or any similar identifier.

Applying its standard two-part test, the ASA ruled that the post was a “marketing communication” (and hence within the remit of the CAP Code) because:

(a) there was a financial arrangement under which this and other posts were paid for by Flat Tummy Tea; and

(b) Flat Tummy Tea had control over the content.

Because it was a “marketing communication” for Flat Tummy Tea but was not obviously identifiable as such, the advertiser was held to have breached CAP Code rule 2.1.

Why this matters:

What’s interesting in this case is the degree of control exercised by the advertiser. It appears Flat Tummy Tea did not dictate the content of Sheikbeauty’s posts and there is nothing in the ASA ruling to suggest that they pre-vetted, reviewed or edited the posts. However the following factors were together seen as meaning that the advertiser “had sufficient control over the content for the post to be considered a marketing communication”:

  1. Stipulation of key messages: The advertiser’s agreement with the blogger required her to publish social media posts based on key messages, eg regarding Flat Tummy Tea’s 20% discount offer during Black Friday and Cyber Monday.
  2. Control over timing of messages: The advertiser instructed the blogger to upload posts on certain dates and at certain times.

For brands working with bloggers and other influencers, this raises a question as to the extent to which broad themes/subject areas (as opposed to specific key messages) can be stipulated without tripping the content into being a “marketing communication”. For instance, if the agreement here had required the blogger simply to ensure that Flat Tummy Tea was mentioned somewhere in her post, but without any stipulation about key messages, context etc, would that have amounted to “control” for these purposes? Or what about a DIY store that pays a blogger to post about DIY/home improvement issues but without any more specific direction?

Many advertisers may wish to play it safe and require influencers to include “#ad” or similar in all paid-for posts. But with the boundary lines around “control” not yet clearly marked, we can expect further ASA cases in due course addressing this issue.