Get earned or get burned: the Oreo vlogger ruling

By Mark Frary

A recent ruling by Britain’s Advertising Standards Authority threatens to remove a key plank from the content marketing strategies of travel companies.

The ruling rapped Mondelez, the parent company of Cadbury and Jacob’s biscuits, across the knuckles for a campaign it had run with vloggers promoting Oreos.

On their YouTube channels, a number of vloggers had taken part in lick races (see AmazingPhil’s channel for example) using Oreos but ASA ruled that the clips had not been labelled as marketing communications and that the vloggers had received both payment and product from the company.

The ASA specifically mentions the concept of “native advertising” – where brands try to make their content indistiguishable from that posted by individuals on social channels. It said, “The presentation of each ad was very much in keeping with the editorial content of the respective channels and that the fact that the videos were marketing communications would therefore not be immediately clear from the style alone.”

ASA ruled that Mondelez must not run the videos in the same form again and that if they did similar campaigns in the future, they needed to make their commercial involvement clear before a consumer clicked on a link.

Andrew Terry, partner and media expert at law firm Eversheds, says of the ruling: “On the face of it, this decision simply reflects the position in all formats, including social media, that all advertising must be ‘obviously identifiable’ as a marketing communication. The principle being that the public must not be misled into believing that vloggers have independently and spontaneously decided to talk about a product.

“The additional twist here is the ASA’s insistence that the commercial nature of the video must be made clear before any consumer engagement. That means that flagging the relationship at some point during the video is not sufficient, which may well make this kind of promotion much less attractive for brand owners.”
Many travel companies engage in similar kinds of content marketing and native advertising, particularly involving blogger and vlogger outreach, and will have read of ASA’s ruling with concern. Many social media strategies in the sector also rely on brands acting as “trusted friends”, i.e. pretending to be individuals with an informal tone of voice and sharing the sort of content that real friends do.

So where does this leave bloggers and brands?