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You Could be a Celebrity Without Knowing it if You Have 30,000 Followers on Social Media

In a landmark decision, the Advertising Standards Authority (ASA) in the UK recently ruled that, for the purposes of the CAP Code at least, a social media user may be considered a celebrity where they have 30,000 followers or more.

In this case, the ASA found that an influencer breached the CAP Code when she published an Instagram post promoting an over-the-counter sleeping tablet produced by Sanofi. The caption for the post was marked ‘AD’ and included the statement:

… I tried out Phenergan Night Time… 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. … #AD #sleep”.

Although health professionals and celebrities can advertise or endorse cosmetic products, CAP Code Rule 12.18 states that “Marketers must not use health professionals or celebrities to endorse medicines.” Sanofi, as the brand and advertiser, argued that the Instagram account in question had a small and niche following of just 32,000 people, which was considerably fewer than celebrities such as Stephen Fry and David Beckham (who have 359,000 followers and 55 million followers, respectively).

However, the ASA (which challenged the ad directly) considered that the attention of over 30,000 followers reached a threshold by which an influencer would reach a significant number of people and therefore the influencer was “a celebrity for the purposes of the CAP Code”.

The ASA banned the ad and told Sanofi that it must not use celebrities, including social media influencers, to endorse its products in the future.

Earlier this year, we covered the CMA’s role in ensuring influencers advertise responsibly, making it clear where payments or incentives have been received in return for posts. The CMA and the Committee of Advertising Practice (CAP) last year released the jointly produced ‘Influencer’s Guide’ which requires that influencers be clear about:

  • Relationships – making it obvious where a social media post is an endorsement and the influencer receives a form of payment;

  • Advertising – indicating when a post is an advert and using labels, tags and hashtags in to indicate every promotion involved in a post; and

  • Obligations – advertisers should insist on ensuring (ideally through written provisions) that an influencer makes the appropriate disclosures of the relationship in the post.

In this age of ubiquitous social media, which is at the forefront of consumerism, the ASA is taking a pro-active and assertive approach to ensure that the advertising regulations are complied with. Brands should take care to put in place written agreements with all celebrities and influencers requiring compliance with such regulations, and with this ruling, bear in mind that an influencer does not need to be traditionally ‘famous’ to fall within certain rules.

© Copyright 2019 Squire Patton Boggs (US) LLP

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About this Author

Carlton Daniel, intellectual property and technology lawyer, London, Squire Patton Boggs
Partner

Carlton Daniel is a partner in our Intellectual Property & Technology team based in our London office. His practice incorporates the full range of specialist advice in the advertising, marketing and media sectors, and he handles both contentious and non-contentious matters. His practice ranges from advising on intellectual property rights (including trade marks, designs, copyright and confidential information) to commercial contracts, licensing, brand endorsement, sponsorship, product placement, privacy, defamation, confidentiality, data compliance and advertising...

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