You Say “Clearly Identifiable,” I Say “Apparent And Conspicuous”

“Obviously identifiable” is the term used by the United Kingdom’s Advertising Standards Authority (ASA) to set the benchmark for how brands and their entrepreneurs must distinguish to crowds “advertising communications”   In the United States, a parallel system to the ASA, known as the Federal Trade Commission (FTC), uses a similar term to explain its advertisements disclosure benchmark: “clear and conspicuous” “from the view of a reasonable customer”   Both authorities have made it clear from their own guidelines and investigatory actions that the need for transparency applies if the marketing content is in conventional media — or inside a tweet, either a place or a pin.

The FTC

The FTC is a U.S. national agency having a wide regulatory mission to “prevent business practices that are anticompetitive or deceptive or unfair to customers.”   It has called itself “the nation’s consumer protection agency.”   In 2009, it enlarged it marketing guidance to add social networking marketing examples.   See, FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising.   In 2013, it enlarged its guidance with its . ComDisclosures document elaborating in great detail about how disclosures need to be created in electronic advertising.

The ASA

The ASA, compared to the FTC, is an “independent regulator” of advertising, not even a governmental authority.   In 2010, the duties of the ASA were officially expanded to incorporate social networking advertising.

The ASA notes that it relies considerably about the persuasive ability of “bad publicity” to bring compliance with its conclusions, even though it can resort to additional sanctions to inspire compliance with its rulings too.

Yes, US and UK Regulators Tweet!

Both regulatory authorities are located on Twitter:  @ASA_UK and @FTC.

Cole Haan’s #WanderingSole Contest Wanders Too Far For The FTC

In 2014, the FTC conducted a study into if Cole Haan, Inc., a major retailer of bags and shoes, violated a necessity under the FTC Act that compels “the revelation of a material link between a marketer and an endorser when their relationship isn’t otherwise evident from the context of the communication which has the endorsement”.

The marketing campaign that captured the FTC’s focus proved to be a social networking competition on Pinterest that invited consumers to make a “board” entitled “Wandering Sole”, with five shoe pictures from Cole Haan’s very own board and five pictures of the contestant’s “favorite areas to ramble,” and all the hashtag #WanderingSole in each pin description.   The creative entrant was to get $1,000 shopping spree.

The FTC’s Problem With Cole Haan’s Pinterest Contest?

A Lack Of Transparency.    

In particular, the FTC was “worried that Cole Haan didn’t teach contestants to label their pins and Pinterest boards to ensure it is clear that they had pinned Cole Haan goods as part of a competition”.   The FTC concluded that the necessary #WanderingSole hashtag was simply not enough to alert other audiences of the pins that they had been posted as part of a competition.   From a regulatory perspective, the absence of such transparency would be likely to mislead other audiences of the pins.

The FTC Takes Cole Haan’s Contest In Stride

Accepting Cole Haan’s competition in stride, the FTC decided to not recommend an enforcement action contrary to the brand, imagining that the FTC had not previously addressed the issue of whether the entry into a competition is a sort of “material connection” requiring disclosure and if a “pin” could be deemed an endorsement.   It further noted that the range of the competition was small and Cole Haan agreed to adopt a social networking policy addressing the FTC’s concerns and to take actions to “track social networking influencers’ compliance” with the duty to “disclose substance connections when endorsing its goods”.

Oreo Cookies Takes A Licking  In The ASA

In November of 2014, the ASA issued an adjudication against Mondelez UK Ltd, the owner of the Oreo biscuits brand, for a YouTube social networking influencer effort that had invited influential YouTube vloggers (people who make and post videos on the web) to post particular content about a competition to see who could lick the cream from an Oreo cookie the fastest.

The ASA’s Problem With Oreos’ YouTube Contest?

A Lack Of Transparency.    

In its ruling, the ASA cited five YouTube videos by “vloggers” (i.e., people who make and post videos on the web) that failed to fulfill up with the ASA’s quality of being “clearly identifiable” because “marketing communications”.

Mondelez UK Ltd verified that the vloggers were compensated to participate in their effort, but said that it had thought that the ASA’s disclosure requirements could be met by variations of disclosure statement the vloggers contained in their videos: “Thanks to Oreo for helping make this video happen!”

The ASA cited two problems using Oreos vlogger disclosures:  (1) that they didn’t “clearly imply that there was a commercial relationship between the advertiser and the vloggers” and (2) the disclosures didn’t appear “before consumer engagement with the substance.”   The ASA educated Mondelez UK Ltd that the videos “must not appear again in their present form”.

Truth In Advertising Is about Transparency

Businesses leaders and leaders will frequently be heard to lament the problem of staying in addition to expanding social networking legislation.   Though such legislation is in a state of development, the core of it, whether in the usa or UK, is familiar to entrepreneurs:   This has long been the standard in conventional media and it remains a guiding principle in new media.

Takeaways:

• Giving a endorsement from social websites while not demonstrating that a sponsored relationship exists between the brand and endorser is misleading — and probably unlawful.
• Entrance into a competition to get a “significant prize” in exchange for posting or pinning or tweeting activates a “material connection” that requires disclosure.
• If you are requesting customers to pin or tweet or post within a competition, require that they disclose somewhere from the trap or tweet or post that the content is part of a competition.
• Disclosures of substance connections involving endorsers and brands ought to be “clearly identifiable / clear and conspicuous” and appear before customers are requested to participate with the sponsored content.
• Have reasonable procedures in place to track incentivized bloggers for compliance with their duty to disclose material connections.
• Adopt a social networking policy that addresses the need for transparency in social networking marketing communications.
• Both brands and bloggers risk reputational harm not to being transparent in their marketing and advertising campaigns.
• Practice the FTC and ASA on Twitter to remain abreast of their latest rulings!