Ads & Social Media - What creates a commercial relationship?

In our age of social media, where every consumer can be their own influencer, as well as food companies providing free samples, the question should be asked as to what exactly creates a commercial relationship between a food company and an individual, such that a social media post may be seen as an ad and must be obviously identifiable as such? #ad 

This very question was examined by the Advertising Standards Authority (ASA) in:

Just Spices GmbH  Upheld  Social media (influencer or affiliate ad)  13 September 2023

Two TikTok posts on Sevda Ela’s account which promoted Just Spices were held not to be obviously identifiable as ads.

Two TikTok posts on Sevda Ela’s account, @sevda.ela:

a. The first post, seen on 20 April 2023, featured a video of Sevda Ela making herself boiled egg on toast with feta cheese for breakfast. She picked up a can of egg topping and put it on her toast. She did not say where the egg topping can was from and the brand name on the can was not visible. The caption in the post stated, “#egg topping is from @justspices_uk not an AD but I do work with them [love heart emoji].” The Tik Tok account @justspices_uk commented on the video saying, “Not just spicy just super tasty! Code justsevda will get you a little extra something [hearts in eyes emoji].” The comment was in response to a user who asked what egg topping was used and whether it was spicy.

b. The second post, seen on 23 April 2023, featured a video of Sevda Ela eating crumpets for breakfast. She mentioned a list of other foods she had in her breakfast, including sandwich seasoning, which she said was from Just Spices. The caption in the post stated, “#eatwithsevda.”

Upheld

The CAP Code stated that marketing communications must be obviously identifiable as such, and that they must make clear their commercial intent if that was not obvious from the context.

Firstly the ASA looked at a commercial relationship and found with contractual agreements between the parties were in place at the time the posts were made.

Although Ms Ela was not required to publish the TikTOk posts and did not receive a fee for them.

However the contracts stated that Ms Ela would receive Just Spices products for free and the ASA considered that constituted a payment to her.

The ASA held because she had been gifted products as part of ongoing commercial agreements, they considered that those gifted products constituted payment for the posts complained about.

The contracts stated she should convey a positive message about Just Spices at all times during the term of the agreements, this included the time of posting the two TikTok posts.

The ASA considered that those two requirements would, in effect, restrict aspects of Ms Ela’s control of her social media content and established that Just Spices had sufficient control over the content of her social media posts, in conjunction with a payment arrangement by way of free products, for the posts to be marketing communications that fell within the remit of the CAP Code.

The ASA held there was nothing in the posts content, such as “#ad” placed upfront, that made clear to those TikTok users viewing them that they were ads. The ASA considered the caption on ad (a), “#egg topping is from @justspices_uk not an AD but I do work with them” would have added to the impression that the post was not a marketing communication. It was concluded that the posts were not obviously identifiable as marketing communications and breached the Code.

In future ads should be obviously identifiable as marketing communications, for example, by including a clear and prominent identifier such as “#ad”.

The conclusion from this is that where there is an agreement in place for a period of time with obligations and consideration paid over, even in the form of freebies, that agreement should oblige the adding of #ad to all posts referencing the food company.