Making Tweets Count

Earlier this week the ASA upheld a complaint against Nike in relation to its use of tweets as part of its "make it count" marketing campaign.  This adjudication, together with the ASA's recent investigation into Mars' use of tweets, provides useful guidance to marketers intending to use Twitter as a platform for brandexposure. The following note highlights the issues involved and the lessons to be learned."

The use of digital media for advertising is increasingly popular with companies now embracing high-traffic social media sites such as Facebook and Twitter as a platform for brand exposure.  

As a natural consequence of this increased use of digital media the ASA extended its remit last year so that it is now responsible for policing advertising and marketing claims on companies' own websites as well as other non-paid for space which they control such as corporate pages on social media sites.

With a limit of 140 characters per tweet it is perhaps not surprising that companies have been slow to utilise Twitter as a means of disseminating their marketing messages.  This is now changing but one of the challenges faced by advertisers is ensuring that their campaigns on Twitter are as compliant as their campaigns in traditional media such as print or television.  Of particular concern to advertisers is how they ensure that consumers are left in no doubt that marketing tweets are obviously advertising.

In March 2012 the ASA considered for the first time the use of celebrity endorsements via tweets posted on Twitter and earlier this week Nike became the first advertiser to have a Twitter campaign banned by the ASA for its failure to ensure its messages were "obviously identifiable" as marketing communications.

The ASA's decision highlights the strict approach taken by the ASA towards marketing communications in digital media and reinforces the need for advertisers to take extra care when using innovative advertising methods to ensure they remain compliant.

Nike's "Make it Count" Campaign - Adjudication – 20 June 2012

In the second high profile investigation undertaken by the ASA involving celebrity brand endorsements via Twitter, the ASA has for the first time upheld the complaint and banned the advertising campaign.

In this campaign two footballers, Wayne Rooney and Jack Wilshere, posted tweets stating "My resolution — to start the year as a champion, and finish it as a champion...#makeitcount gonike.me/makeitcount" and "In 2012, I will come back for my club — and be ready for my country. #makeitcount. gonike.me/ Makeitcount", respectively. The tweets were devised by Nike, which has lucrative sponsorship deals with both players and their clubs, as part of Nike's 'Make it count' marketing campaign.

The key issue under review was whether Nike had done enough to ensure that these tweets were obviously identifiable as marketing communications – as required under rules 2.1, 2.3 and 2.4 of the CAP Code.  The ASA concluded that whilst it understood that the footballers were required to take part in marketing activities as part of their sponsorship deal with Nike, the CAP Code requires that marketing communications must be "obviously identifiable as such".  Although the tweets included the Nike URL directing users to the Nike website, the ASA concluded that the reference to the Nike brand "was not prominent and could be missed". Nike also argued that use of the hashtag "#makeitcount" made clear that the tweet formed part of its wider "Make it Count" marketing campaign but unfortunately for Nike there was an issue with timing.  The tweets were sent in January 2012 at the launch of Nike's "Make it Count" campaign and before it had gained public awareness.  As a result the ASA concluded that "consumers would not have already been aware of Nike's "#makeitcount" campaign and that not all Twitter users would be aware of the footballers' and their teams' sponsorship deal with Nike". The ASA therefore concluded that as the tweets were not obviously identifiable as marketing communications, and in the absence of any indication that they were adverts, for example the inclusion of #ad, the tweets were in breach of the CAP Code and must no longer appear.

By way of contrast it is worth comparing this adjudication with the ASA's adjudication following its first investigation into celebrity endorsement tweets as part of a campaign launched by Mars.

Mars adjudication – 7 March 2012

At the same time that Wayne Rooney was tweeting his resolutions for 2012, a series of unusual tweets were posted by celebrities which, as became clear in time, were part of a marketing campaign endorsing the Mars 'Snickers' chocolate bar.  Although Mars was using Twitter in a similar way to Nike, the content of the tweets and the audience's likely perception and understanding of the marketing context of the tweets resulted in the ASA ruling that Mars' tweets were not in breach of the CAP Code.  So how did the two campaigns differ and what lessons can be learned from them?

The Snickers endorsement was orchestrated through a series of tweets posted by Katie Price and Rio Ferdinand.  Each celebrity posted five tweets within the space of an hour, the first four of which were "teaser" tweets making no reference to Mars or Snickers but instead comprising of statements which were clearly out of character.  For example, Katie Price's tweets included "Chinese leaders are now likely to loosen monetary policy to stimulate growth. Yay!!", whilst Rio Ferdinand tweeted "Really getting into the knitting!!! Helps me relax after high-pressure world of Premiership".  Each celebrity then posted a fifth and final "reveal" tweet, showing a photograph of the celebrity holding a Snickers bar, accompanied by the tagline "You're not you when you're hungry @snickersUk #hungry #spon".

As with Nike, the issue was whether these tweets were obviously identifiable as marketing communications.  In its investigation, the ASA decided that each tweet formed part of an orchestrated advertising campaign and each "teaser" tweet formed part of an overall marketing communication.  The ASA disagreed with Mars' assertion that only the fifth tweet was a marketing communication, or that the teaser tweets only became marketing communications once the reveal tweet had been posted.  The ASA's stance was that each individual tweet was a marketing communication even though the teaser tweets made no express reference to either Mars or Snickers.  There is some logic to this approach as the teaser tweets were clearly generated by Mars and formed an essential part of the wider marketing campaign.  They were, if you like, the first four chapters in a five chapter marketing campaign and without the teaser tweets the final reveal tweet was somewhat meaningless.  So if the ASA regards each individual tweet as a marketing communication, why was it considered acceptable that none of the teaser tweets contained an express statement that they were marketing communications?  The reasons given by the ASA were that:

(a)   the teaser tweets made no reference to Mars or Snickers;

(b)   each tweet was posted within a short space of time; and

(c)   the fifth reveal tweet made it sufficiently clear that each of the tweets formed part of a wider advertising campaign and the tagline "You're not you when you're hungry" paired with "@snickersUk" and the hashtag "#spon" was sufficient to identify all of the tweets as being marketing communications.

Guidance for marketers

Taken together, the ASA's adjudications highlight the following important principles:

1. Marketers must be aware that the ASA now actively regulates marketing communications within digital media and should understand the implications this has on the content and context of material posted on their own websites, as well as other non-paid space which they control, including social media sites such as Twitter and Facebook.
2. All marketing communications in digital media must comply with the requirements set out in the CAP Codes and marketers should audit and vet their online content as rigorously as their content appearing on more traditional media.
3. Use of new and emerging technologies and marketing techniques requires careful analysis to ensure that innovative marketing campaigns remain compliant.
4. Marketers must always consider whether the audience will quickly recognise the content as an advertisement, taking into account the context in which the advertisement appears and, if not, there should be an express statement to make this obvious – such as use of "#spon" in a tweet or "Advertisement Feature" in a print ad that resembles editorial.
5. The ASA has demonstrated that it will deal with online media communications on a case by case basis, taking into account a variety of factors including the context in which the communication appears, the sophistication of the target audience, the use of references to a brand or the use of hashtags which are clearly identifiable as adverts, such as #ad or #spon.
6. Marketers must ensure the online advertising space which they control is closely monitored and continue to be aware of the regulations which apply to new and innovative methods of advertising.

David Bond, Partner, and Lucy Little, Trainee Solicitor, both of Fieldfisher's Advertising and Marketing Group.