Snickers vs Sneakers - Nike, Twitter and the ASA Ruling
This is the first such campaign to be banned under the ASA’s extended digital remit which came into force in 2011 and seems clear. The tweets didn't mention that they were part of a campaign and that the tweeters were receiving money for them, so they were banned. However, this ruling follows on the heels of another campaign that was cleared by the ASA in March of this year, Snicker’s “You’re not you when you’re hungry” campaign. In that campaign celebrities were paid to tweet 4 tweets in quick succession that didn't mention they were paid for and that were completely out of character. These were followed by a final tweet that read “You’re not you when you’re hungry” and provided a link to campaign material. As an example, Katie Price’s tweet included the following “Large scale quantitative easing in 2012 could distort liquidity of govt bond market”. Followers thought her stream had been hacked.
So what’s the difference between the two activations? Both were assessed under the Consumer Protection from Unfair Trading Regulations (2008) which prohibits “using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial).” And makes it illegal to “mislead consumers by act or omission” where this is likely to have an impact on the consumer's decision making about the brand, product, or service.
The Nike campaign used 1 tweet and no clarification. Although Nike argued that their tweets differed from Rooney and Wilshere's usual tweets in that they had the hash tag #makeitcount was used and so was a link with the Nike name in it, the ASA noted that Twitter sponsored posts must be not just identifiable as marketing communications but obviously identifiable. The Snickers campaign used 4 tweets without clarification and 1 with, but the four tweets came in quick succession and the ASA ruled that they could be viewed as one “experience” so that together with the fifth they could be viewed as a whole and therefore obviously identified as a marketing campaign.What that means is that it’s possible to open the door to teaser campaigns in Twitter as it is in other spaces, but the consumer remains protected from believing an ad is not an ad. Importantly thing to remember is this, the primary legal responsibility for complying with the law lies jointly with the brand owner and any agencies involved with the promotion – not one or the other.
Effective social media engagements are about building good relationships and mutual respect. It doesn’t mean you can’t pay Twitter stars to tweet your campaigns and it certainly doesn't mean you can't be clever or funny, as Snickers demonstrates. In fact, be as clever and funny as you like, as long as you deliver the reveal swiftly enough for no one to remain in a state of confusion. But it does mean you can’t create single, subtle, paid-for tweets without being clear that they are paid for. Finally, if you are at all in doubt, the IAB's social media council (of which I am a member) and ISBA have created a short set of guidelines - just add #ad or #spon.