There has been some hype around a recent ASA ruling, readers may have come across some not-entirely-accurate headlines such as “anyone with more than 30,000 social media followers considered a celebrity” or “Instagram influencer Sarah Willox Knott rapped by watchdog”. So here is what really happened!
The ASA CAP Code
For those not familiar with the ASA CAP code, the Advertising Standards Authority is the UK’s independent regulator of advertising across all media. The CAP code is the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing that is essentially the rule book for non-broadcast advertisements, sales promotions and direct marketing communications. The ASA CAP is a self-regulatory system and the majority of advertisers voluntarily agree to comply. Persistent non-compliance with the ASA is dealt with through bad publicity or referal to other bodies such as Trading Standards or Ofcom.
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Kat Nap. No sleeping pills required.
Image: Flo Hilts UK |
The Advert in Dispute
In February 2019, social media influencer and blogger Sarah Willox Knott, posted on her Instagram account This Mama Life, a picture of herself in bed, with a packet of Phenergan Night Time tablets. The caption below the image stated “[AD] Sleep. Who needs more of it? I’m really lucky in that I don’t actually need a lot of sleep to get by and manage to cram all sorts into my evening, being the night owl I am. Every now and again though, daily life can get a bit overwhelming and I often find it’s my sleep that ends up suffering. I end up going to bed even later than I usually do and am not able to fall asleep. The worry of not sleeping then adds to it all and I end up a complete and utter zombie!! Last time this happened I tried out Phenergan Night Time, which really helped. It is a pharmacy only, short term solution to insomnia for adults which works by inducing a sleepy effect thanks to its active ingredient, promethazine hydrochloride, helping you to sleep through the night. Do you guys fall asleep easily or are you night time over thinkers like me? #AD #sleep”.
The Complaint & Response
The ASA received 1 complaint, that Sanofi had used a celebrity to endorse a medicine, contrary to Rule 12.18 of the CAP code which states that: Marketers must not use health professionals or celebrities to endorse medicines.
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A marketing strategy using influencers
who have no influence you say?
image: Elizabeth Phung |
Healthcare company Sanofi, who manufacture the sleeping pills, defended against the complaint by arguing that the Instagram account had a small following which was unlikely to influence a medicinal decision taken by a consumer. [Rather an unconvincing approach, since if that was the case, why would they have paid for the advert?] Anyway, it was their position that the blogger did not constitute a celebrity as she only had 32,000 followers (at the time in April 2019). To illustrate this point, they compared people they did deem as celebrities on Instagram such as Stephen Fry who had 359,000 followers, David Beckham with 55million followers. Sanofi also said that the decision to partner with the blogger was checked with the Proprietary Association of Great Britain (PAGB- the consumer healthcare UK trade association).
The Ruling
The ASA assessed whether the blogger, ThisMamaLife, was a celebrity for the purposes of the CAP Code and whether she had endorsed a medicine. Firstly, it was clear that as Phenergan Night Time tablets is an over the counter medicine, and that consumers would understand the ad in question to mean that ThisMamaLife had used and recommended the product. On that basis, the ASA considered that ThisMamaLife has endorsed the medicine.
In relation to the celebrity status of ThisMamaLife, the ASA noted that she had approximately 30,000 followers on Instagram and regularly produced content across different social media platforms relating to her experiences as a parent. Her Instagram feed featured over 1000 posts that included recommendations on different products. The ASA considered that over 30,000 followers indicated that she had the attention of a significant number of people. Therefore, given that she was popular with, and had the attention of a large audience, ThisMamaLife was a celebrity for the purposes of the CAP Code.
As such,
the ruling concluded that the ad breached CAP Code (Edition 12) rule 12.18 (Medicines, medical devices, health-related products and beauty products). Under the guidance
Health: Celebrities and health professionals on the ASA website it states that the ASA considered she was a “celebrity”
for the purpose of rule 12.18.
The Outcome & Impact of the Decision
The ASA told Sanofi to ensure that they did not use celebrities including social media influencers to endorse medicines in future, and ThisMamaLife removed the advert.
The impact of this decision is that the term celebrity for the purpose of medicines is interpreted strictly. This is not surprising since the rule intends to stop marketers from using people to endorse medicines that might influence a medicinal decision taken, or encourage consumption of a product, by a consumer, a result of their celebrity status. The ASA ruling is not legally binding, but it does enforce the same rule as set out in section 289(c) of the Human Medicines Regulations 2012.
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Dream a little dream of meee
Image: Sarah Katzenell |
The ASA did not dream up [!!] a magic number of followers that defines a celebrity, but simply determined that in this case, the influencer had around 30,000 followers and that was enough to constitute a celebrity endorsement of the product. It is likely that the outcome would have been the same if ThisMamaLife had less followers, since it is apparent that she had enough followers to attract the contract with Sofia in the first place. Ultimately the decision extends the ban on advertising of medicines through celebrity endorsements to social media influencers and the number of followers and therefore having under 30,000 followers would not necessarily avoid a breach of the ASA CAP code, or the UK Law.
The ruling also implies is that brands are liable, rather than the influencer, in these circumstances, since rule 12 is aimed at marketers. However, the Human Medicines Regulations 2012 state that “A person may not publish an advertisement…” so it may be the influencer who is liable under UK Law. In addition, in general influencers and brands are considered jointly responsible for ensuring that advertorial content is compliant with the ASA CAP Code.
The claims that having over 30,000 followers means that influencers have to comply with the CAP code are also misleading because influencers already have to comply with the CAP code. The ASA provide a specific
guidance for influencers which states that branded content posted on a persons own social media counts as an ad when the person is paid in some way and has some form of editorial control over the content. These are the required factors for when the CAP code applies, and it is irrelevant how many followers the person may have. In May 2019, the ASA reported that they now receive 3 times as many complaints about online ad than TV. More than 16 instances have already been found to be breaching the CAP code. For example, last year Louise Thompson and Daniel Wellington were found to be in breach of Rule 2.1 [Marketing communications must be obviously identifiable as such] after a post by Louise that failed to use #ad.
