Clifford Chance

Molly Mae falls foul of ASA giveaway rules (again)!

Love Island star and influencer Molly Mae has fallen foul of the ASA guidance in relation to giveaway rules. A post from the star's home account was reported to the ASA by a complainant who believed not all entrants were included in the final prize draw and did not therefore have an equal chance of winning. The ASA investigated whether (i) the prize was awarded in accordance with the laws of chance; (ii) the promotion was administered fairly; and (iii) the promotion breached the Code because it omitted a significant condition.

The post(s) in question did include certain terms and conditions for entry, including how to enter, where entrants needed to be based, how a winner would be chosen and when. Despite this, the ASA upheld the second and third complaints, ruling that the post(s) breached the Code for not being administered fairly and failing to clearly communicate all applicable significant conditions.

The giveaway was deemed to be unfair as the influencer would not have been able to count bonus entries made by those with private Instagram accounts. However, this is partly due to Instagram's privacy features which would not alert the influencer to such posts. Despite this being a standard feature of Instagram accounts, and out of the influencer's control, the complaint was upheld by the ASA.

This ruling highlights how stringent the ASA's giveaway rules are and how careful influencers engaging in promotional draws need to be. Whilst spontaneous and easy-to-enter giveaways are common on social media, influencers may want to think twice before offering such promotions if they haven't strictly complied with the ASA's guidance on giveaways.

Key takeaway:

• All conditions of entry, including any barriers to entry, must be made clear on any social media posts promoting a giveaway.

By Laura Hartley, Associate in the Intellectual Property team in London

Tongue-in-cheek marketing email leaves sour taste

Craft beer brand, BrewDog, sent an email to its customers about the launch of a guava-flavoured beer with the subject heading "One of your five a day". The ASA has ruled that the ad was misleading as consumers were likely to interpret this as a genuine health claim.

BrewDog highlighted that the email was sent only to BrewDog customers who had "opted-in" to receiving marketing communications and would therefore likely be aware of the company's playful marketing style (which has, incidentally, led to previous rulings by the ASA). Furthermore, the company pointed out that fruity beers, and marketing related to them, were common in the industry and its customers would therefore understand that the comparison was not made with the intention of implying equivalence in health terms between fruit and fruity beer.

However, the ASA held that, whilst some consumers may understand the reference as a tongue-in-cheek joke, generally, consumers would only expect to see such a claim relating to well-known government health advice if the advertised product actually complied with this advice. The fact that it was in the email subject heading also meant it was a key element of the ad's message. The ASA considered that consumers would be uncertain whether a fruity beer would have enough fruit content to be counted as one of your '5 a day'.

Key takeaways:

• Marketing to a targeted base of consumers may not significantly change the ASA's assessment of the general public's reaction.
• The placement of potentially offending wording may change whether it is seen as a key element of the ad's message.

By Jonathan Coote, Associate in the Intellectual Property team in London

Five complaints regarding affiliate links on the MailOnline have been upheld by the ASA for not being obviously identified as marketing communications.

These complaints related to short- and long-form articles promoting various products. Only the long-form articles contained affiliate links and the short-form articles linked through to the long-form articles. Another complaint related to MailOnline's "Femail Fashion Finder" box, which contained affiliate links within an article about clothing.

Associated Newspapers claimed the articles were "genuine editorial content written by their professional journalists" and that they had "exclusive control over the content" so the CAP Code did not apply. Moreover, the articles disclosed that the company "may earn commission on sales" but that this did not detract from the articles being editorial.

The ASA disagreed and concluded that both the short- and long-form articles were marketing communications. The ASA considered that the inclusion of affiliate links amounted to entering into "an agreement to be an affiliate marketer" and it was irrelevant that only Associated Newspapers controlled the article content. Further, given certain recommendations were based on reviews, not the journalists' personal recommendations, the product selection was not "wholly independent".

The ASA ruled that the long-form articles and the "Femail Fashion Finder" box were advertisements in their entirety and should have been "clearly labelled as such". The ASA also held that if a short-form article links to another article that is an advertisement, then this must be made clear in the short-form article.

Key takeaways:

• Articles which are "affiliate marketing communications" are advertisements and need to be obviously identifiable as such.
• Such articles should be clear in their commercial intent if not obvious from the content.

By Amelia Chammas, Trainee in the Intellectual Property team in London

YouTube ad deemed too wild for children

Wild Cosmetics' advert has caused complaint after it was shown before a Minecraft video on YouTube. The 3-minute advert shows a woman with an apparent climate change fetish appearing to engage in sexual activity with a polar bear who then educates her about the sustainable nature of Wild Cosmetics' deodorant.

The complainant claimed the ad was viewed by her 10-year- old son and challenged whether it had been irresponsibly targeted.

Wild Cosmetics claimed that they target their YouTube ads based on user interest. As such, it was likely that someone deemed a prospective customer was logged into YouTube when the ad was shown. The company also claimed that an algorithm controlled which videos their ads were shown in conjunction with and it did not advertise on channels that were clearly marketed for children.

Interestingly, Google (YouTube's parent company) claimed that the ad was served through a self-administered system that offered tools to help advertisers target or exclude the type of content that their ads appear alongside but it was Wild Cosmetics' responsibility to abide by the CAP Code.

The ASA aknowledged that Wild Cosmetics had made efforts to target the ad based on the interest of potential customers and had excluded some channels, but those exclusions proved to be insufficient. Indeed, given the ad appeared before a video showing content likely to appeal to children, the ASA ultimately decided that the ad had been irresponsibly targeted and the complaint against Wild Cosmetics was upheld.

Key takeaways:

• Advertisers should carefully consider the type of content their ads appear with and put in place exclusions for more mature themed adverts.
• Algorithms to target consumers are helpful but are not fool proof and the advertiser is ultimately responsible for where the ad appears.

By Lauren Royers, Senior Associate in the Intellectual Property team in London

Foul Play: Barcelona FC's NFT ad flagged for misleading content

The ASA has upheld a complaint in relation to a paid-for Google search result published by Barcelona FC about the sale of the football club's NFT at Sotheby's. The ad read:

“July 29, 2022 – NFT Johan Cruyff. Don’t miss the live auction. The first NFT Masterpiece of FC Barcelona. Premiere July 29th. Johan Cruyff’s “impossible goal” in 1973. Immortalized and offered as an exclusive NFT”.

The ASA challenged whether the advert was misleading because it did not make clear:

• the risks associated with NFTs;
• any related fees (e.g. auction house fees, sales tax and wallet transfer fees); and
• the fact that there are significant restrictions on ownership rights.

Barcelona FC argued that:

• NFTs were not financial products, but collectibles, and could not be considered an investment,
• any risks were explained in Sotheby's Conditions of Sale (including the sales premiums and the limits of ownership rights), and
• the advert could not have included any further information as it had reached the maximum characters limit for a Google search ad.

The ASA upheld the complaint on all three counts determining found NFTs to be a volatile, unregulated cryptoasset, and that the advert should therefore have include a risk warning. The CAP Code requires that marketing communications for investments make very clear that the value of investments is variable and, can go down as well as up.

Key takeaways:

• Advertisers should choose an appropriate medium for their ads. The fact that Google ads do not have enough space to include adequate warnings is not a satisfactory reason for Barcelona FC omit key information.
• Advertisers should ensure any associated risks are visible on the face of the advert, not in any separate conditions of sale.

By Uche Eseonu, Associate in the Intellectual Property team in London

Transparency behind the screen

The CMA recently published guidance for social media platforms, influencers and brands with regards to online advertising, in order to increase transparency for consumers. This follows a CMA investigation into hidden advertising on social media platforms, amid concerns that celebrities and influencers were not declaring when they were being paid or rewarded for endorsing products on social media platforms. Subsequently, 16 influencers (including Rita Ora, Ellie Goulding and Rosie Huntington-Whiteley) provided undertakings to the CMA to make it clear when they had been paid or otherwise incentivised to endorse a product or service. Meta also offered undertakings whereby it would introduce measures preventing hidden advertising on Instagram.

Social media platforms

The CMA has set out six principles to help social media platforms comply with consumer protection law in relation to hidden advertising, including providing influencers with tools to identify endorsements, making it easier for users to report suspected hidden advertising, and taking action when violations occur.

Businesses

In relation to paid-for promotional content, the CMA's guidance clarified that businesses also have a duty to ensure that such content is labelled as an advertisement, including by clearly setting out policies on conduct for influencers, working with influencers to rectify any hidden advertising and marking any social media content relating to gifts sent by the business to influencers as advertisements.

Content creators

The CMA updated its guidance to content creators on how to label commercial content to comply with consumer protection law, including in relation to disclosing gifts, own-brand relationships and the importance of upfront, prominent disclosures when posting reels, stories or other video content.

The CMA is continuing to work closely with Ofcom and the ASA to identify and deal with hidden advertising on social media platforms.

Key takeaway:

• The CMA expects social media platforms, influencers and brands to take active steps to ensure consumer protection by avoiding misleading behaviour through social media posts.

By Aniko Adam, Counsel, and Farhan Shahid, Associate in the Antitrust team in London.

Nothing to hide: Google Privacy Sandbox

The CMA recently published its third update report on Google's implementation of its Privacy Sandbox commitments.

In 2019, Google launched a Privacy Sandbox initiative, whereby it declared its goal of making the internet more secure for users, including a proposed removal of third-party cookies and other functionalities from its Chrome browser. However, in 2021, the CMA launched an investigation into these proposals, citing concerns of the potential impact on publishers and users, ultimately leading to a potential abuse of a dominant position.

In response to the CMA's concerns, Google offered commitments, allowing oversight by the CMA over implementation of its proposals, which were accepted by the CMA in February 2022. Google also agreed to provide quarterly reports to the CMA on the progress of the Privacy Sandbox proposals.

In its fourth quarterly progress report in January 2023, Google clarified that Chrome will phase out support for third-party cookies over a two-month period in Q3 2024, following the relevant technologies becoming generally available from Q3 2023 onwards. Google has continued to engage with market participants to identify any concerns in respect of its proposals.

In response, the CMA's report noted that Google has continued to comply with its commitments, specifically highlighting continued engagement with the CMA, and effective progression of testing the Sandbox tools. The CMA has also made it clear that it intends to continue to focus on its involvement in the implementation of the proposals, Google's consultation with third parties, and specifically, Topics API and First Party Sets.

Key takeaway:

• The CMA is still gathering evidence of the likely impact of the Privacy Sandbox tools, which will form an important element of the CMA's assessment of the effectiveness of Google’s proposed changes in terms of market outcomes, competition and privacy, before allowing Google to proceed with the removal of third party cookies.

By Aniko Adam, Counsel, and Farhan Shahid, Associate in the Antitrust team in London

Ofcom consults on approach to regulation of advertising HFSS products from October 2025

Ofcom is consulting on its proposed approach to implementing new restrictions on advertising and sponsorship for less healthy food and drink products (i.e. certain food and drink products that are high in fat, salt or sugar (HFSS)) on TV, on demand, and online, which were introduced by the Health and Care Act 2022. They will take effect from 1 October 2025.

The new restrictions will mean :

• TV services and ODPS are prohibited from including advertising and sponsorship for less healthy food and drink products between 5.30am and 9.00pm.
• Paid-for advertisements for these products, where they are aimed at UK users, will be prohibited from being placed online at any time.

The consultation sets out Ofcom’s approach to implementing the new restrictions and also confirms that the new restrictions on TV and ODPS are covered by the existing co-regulatory arrangements that apply to advertising in these media: this is with Ofcom as the statutory regulator, in co-regulatory relationships with the Advertising Standards Authority (ASA), the Broadcast Committee of Advertising Practice (BCAP) and the Broadcast Standards Board of Finance (BASBOF). It also sets out Ofcom's proposal to designate the ASA as a co-regulator for the new prohibition on online advertising for HFSS products.

Additionally, Ofcom has set out the amendments to the BCAP Code and the Broadcasting Code which are needed to reflect the new restrictions that apply to advertising and sponsorship on TV.

Comments are requested by 21 April 2023.

Key takeaway:

• Ofcom’s proposal to designate the ASA as co-regulator for online HFSS advertising may result in an additional administrative burden and other costs for advertisers. However, as the ASA already regulates online advertising on a self-regulatory basis, and advertisers are therefore required to engage with it in relation to the existing rules on online HFSS advertising, any additional burden should hopefully be negligible.

By Scott Vine, Senior Knowledge & Information Officer, Tech//Digital & IP, London.