Using Instagram and other social media platform influencers to advertise is becoming an increasingly popular trend and an effective method for brands to promote their products.

As such, a recent ASA ruling should be on the radar of both brands and influencers. In July 2019, the pharmaceutical company Sanofi was found to have breached the CAP Code rule 12.18, which states: "Marketers must not use health professionals or celebrities to endorse medicines".

As part of Sanofi's influencer campaign, Sanofi entered into a partnership with a lifestyle Instagram blogger "ThisMamaLife". Safoni confirmed that the decision to partner with ThisMamaLife had been checked with the Proprietary Association of Great Britain, a body who represents manufacturers of branded over the counter medicines in the UK, prior to them commencing their campaign.

ThisMamaLife posted an advert on her Instagram page endorsing Sanofi's over the counter "Phenergan Night Time tablets", proclaiming that they "really helped" her the last time she used them.

After evaluating the facts, the ASA determined that the Phenergan Night Time tablets were a medicine and that ThisMamaLife was endorsing them for the purposes of CAP Code rule 12.18. The question was whether the advert used a celebrity to endorse the medicine.

At the time of the assessment ThisMamaLife had 32,000 followers which, compared to major celebrities such as David Beckham (with over 55 million followers), is not a significant following. That being said, ThisMamaLife describes herself on her Instagram page as a "family blogger/Vlogger", utilises several social media platforms and promotes various products through these channels.

The ASA considered that ThisMamaLife, despite having a relatively small amount of followers, had an engaged audience and effectively had influence over a significant amount of people. Subsequently, they found that ThisMamaLife fell under the definition of a celebrity and the advert was therefore in breach of CAP Code rule 12.18. The advert has now been banned and the ASA advised Sanofi to ensure that they do not use celebrities, including social influencers, to endorse medicines in the future.

When does an influencer become a celebrity?

The concept of a "celebrity" extending to within the Instagram sphere perhaps indicates why there is a growing concern of the ASA to ensure consumer protection. The ASA is aware of the fact influencer created content highly impacts consumer purchasing decisions and the regulator has been heavily cracking down on influencer advertising. Where an influencer has significant levels of engagement, it is important that they comply with the Code in the same way that they would if they were a "celebrity" in the traditional sense. Brands and influencers should therefore be aware of the additional restrictions placed on "celebrities" by the ASA, including that they may not:

  • advertise medicines;
  • make any health claims or recommendations in ads for foods and food supplements;
  • advertise food or soft drinks that are high in fat, salt or sugar to pre-school or primary school children (under-12s);
  • if they are or look under the age of 25, be featured in gambling adverts (unless they are the subject of the bet being offered and the bet can be placed directly) or play a significant role in alcohol adverts.

More recently, Jemma Lucy, with a following of 640,000 received an advertising ban from the ASA after she posted an advert on Instagram promoting a weight loss supplement. She received the ban for three reasons:

  • the post was not easily identifiable as an advert;
  • the advert could be seen to encourage weight loss products for pregnant women (it would have been known to her followers she was expecting at the time); and
  • she made health claims and recommended the weight loss supplement, which as mentioned above is a restriction on celebrities.

Brands and influencers must ensure they are aware of the CAP Code guidelines to avoid any social media pitfalls, particularly given that this ruling has widened the definition of celebrity to capture macro and micro influencers as well, who many brands have partnerships with.

If you are an influencer or brand and wish to discuss any aspect of this article, influencer marketing or sponsorship and brand campaigning more generally, please contact Susan Honeyands (Partner), Lisa Urwin (Legal Director) or Duncan Reed (Partner).