July 11, 2012

To Tweet or Not To #Tweet - A Second UK Ban On Marketing Tweets

Seller Beware: Consumer Protection Insights for Industry

We reported a few weeks ago that Nike had become the first company to have its marketing tweets banned by the UK's Advertising Standards Authority (ASA). The messages, which were tweeted by Nike-sponsored football stars Wayne Rooney and Jack Wilshere, failed to make clear on their face that they were sponsored marketing messages.

Continuing its crackdown, the ASA has handed out a second ban to Toni & Guy, a chain of UK hair salons, for breaching the CAP Code. The decision concerned two tweets from Gemma Collins, one of the stars of popular UK reality series 'The Only Way is Essex'. One tweet read "In @toniandguylside having such a wonderful time defo got my hair back to good condition 10% off call today and quote #gemma x" the other read "10% off @toniandguylside I have the most amazeballs hair colour and condition best salon ever call and say #gemma for discount xx". A complainant challenged whether the tweets were marketing communications and should be identified as such. In response, Toni & Guy said that the tweets had been drafted by Gemma on the spur of the moment after she visited the salon and were not part of a formal marketing campaign. As Gemma had had a good experience, they had suggested that she tweet about it and a 10% discount could be offered. Toni & Guy also said that the mention of a 10% discount made it clear that the tweets were marketing communications.

Upholding the complaint, the ASA said that users could have interpreted the tweets as referring to a pre-existing 10% off sales promotion. The tweets mentioned "#gemma' but given the context of the whole tweets, users may have overlooked that or not understood that the offer related to Gemma Collins. The ASA considered that without using identifiers such as "#ad", the tweets were not obviously identifiable as Toni & Guy marketing communications and therefore breached the CAP Code.

A pattern is starting to emerge. Marketers should be extra careful to ensure that any marketing tweets are clearly identified as such in the body of the message, for example by using the hashtags #ad, #spon or #promo.

© Arnold & Porter Kaye Scholer LLP 2012 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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