The Advertising Standards Authority (ASA) said it had "launched a formal investigation into tweets by Katie Price and Rio Ferdinand" in a bid to find out whether a promotional campaign run by Mars for its Snickers chocolate breached advertising rules.
Price and Ferdinand posted Twitter messages containing the strap-line for the ad campaign Mars is currently running for Snickers bars – 'You're not you when you're hungry' - according to a report by the BBC. Those messages had been preceded by "out of character" postings by the pair on the micro-blogging site that related to the economy and knitting, a report by The Register said.
An ASA spokesman told Out-Law.com that the tweets were being assessed for compliance with section two of the UK Code of Non-broadcast Advertising, Sales Promotions and Direct Marketing (CAP Code).
"We are investigating ... whether it should have been stated in the ‘teaser’ tweets that they were marketing communications and whether the hashtag '#spon' in the final ‘reveal’ tweet made it clear enough that that tweet was a marketing communication," a statement from ASA said.
Under section two of the CAP Code marketing communications must be "obviously identifiable as such". Marketing communications are required to "make clear their commercial intent" if the context of the material does not make that obvious. Adverts that also " falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession" are prohibited whilst both marketing firms and publishers are required to "make clear" when "advertorials are marketing communications" under the terms of the Code.
The ASA, which reviews compliance with the CAP Code, can refer misleading advertisers to the Office of Fair Trading (OFT), the consumer protection watchdog, which has the power to bring legal proceedings for breaches of UK consumer protection laws, although such referrals are rare.
The Consumer Protection from Unfair Trading Regulations (CPRs) protect consumers from unfair commercial practices which would lead them to take a purchasing decision that they would otherwise not have taken. Business proprietors are potentially liable for an unlimited fine and a prison sentence of two years if they are found to have committed such an offence.
Under the CPRs businesses are prohibited from "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).”
The CPRs also prohibit traders "falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.” That practice is more informally referred to as 'astroturfing', because it fakes grass-roots support for a product or service.
Last year the OFT told Out-Law.com that advertising and marketing practices on sites like Twitter would be considered "deceptive under fair trading laws" if paid-for promotions were not disclosed as such.
"We expect online advertising and marketing campaigns to be transparent so consumers can clearly tell when blogs, posts and microblogs have been published in return for payment or payment in kind. It is important that people involved in online promotional activity understand their responsibilities and do not mislead their customers," the OFT said at the time.
In November the Internet Advertising Bureau (IAB) UK and Incorporated Society of British Advertisers (ISBA) published new guidance on how brand owners and marketers can comply with consumer protection laws and rules on advertising when making a payment in order to "editorially promote" products and services on social media platforms.
The advertising bodies said that marketers paying others to use editorial space in social media to promote their goods or services should "ensure that the author or publisher of the message discloses that payment has been made".