What if employees express themselves positively about your products on social media?

The food and beverage industry has strict regulations to adhere to when it comes to nutritional and health statements in the marketing of their products. The regulations for marketing in social media are not as clear. Misinterpretations are easily made. This happened to Nocco's brand manager Linus Carlén who was recently found to have broken the ICC regulations on advertising on social media by the Swedish Advertising Ombudsman jury for failing to state the commercial purpose of a post on his private Instagram account. Do your co-workers risk the same? Let's look at what applies.

3 July 2019 •

In the begin­ning of 2019 jour­nal­ists from the busi­ness mag­a­zine Resumé that mon­i­tors media and mar­ket com­mu­ni­ca­tion, want­ed the Swedish Advertising Ombudsman (Reklamombudsmannen; RO) to look into what con­sti­tutes hid­den adver­tis­ing in social media. They report­ed 16 posts from 14 influencers.

Posts on private Instagram accounts

The RON found sev­er­al posts guilty of hid­den adver­tis­ing. One of the most promi­nent cas­es con­cerns Nocco, a man­u­fac­tur­er of sug­ar-free func­tion­al beverages.

In November of 2018 Nocco’s brand man­ag­er Linus Carlén made a post on his pri­vate Instagram account. In the post he express­es a per­son­al and pos­i­tive view of the com­pa­ny’s bev­er­ages. He also stat­ed how much they cost: two for 35 SEK. But to see the full post the read­er had to click on “more”. The post then got a com­mer­cial char­ac­ter where the brand man­ag­er sug­gest­ed a store and encour­aged the read­er to buy. A clear state­ment that it is pro­mo­tion­al was miss­ing, said the RON, and their deci­sion was; in breach of the rules.

Linus Carlén’s post on Instagram that RON found in breach with ICC rules on adveris­ment identifiucation.

Linus Carlén’s post on Instagram: “Like BOOM when you find this X-mas clas­sic in the stores again. 2 for 35 at @kvantumliljeholmen and it went right into my self-scan bag. Also avail­able via link in my bio if you want to secure a whole box #noc­co #theresonlyonemarshmallowsantaintheworld”.[/caption]

Transparency for advertisers and influencers is scant

Behind the sur­vey of the posts and reports to the RO are the jour­nal­ists Yasmine Winberg and Julia Lundin of the busi­ness jour­nal Resumé. Over the years they have noticed that both adver­tis­ers and influ­encers are often uncer­tain what actu­al­ly applies.

– We decid­ed to look into this as there is, in our opin­ion, no clear and set prac­tice. Despite the fact that influ­encers have been active for more than ten years, there is only one con­vic­tion of an influ­encer in the Patent and Market Court. At the same time influ­encers become more and more impor­tant for mar­ket­ing, says Julia Lundin.

Yasmine Winberg och Julia Lundin är jour­nal­ist­duon på Resumé som har granskat och anmält influ­encer-inlägg i blog­gar och sociala medi­er. Bild: Resumé.

A large part of advertising

Surveys done by the Institute for Advertising and Media Statistics (IRM) show that more and more funds are spent on influ­encer mar­ket­ing in Sweden. During 2017 the mar­ket had a turnover of 660 MSEK, which is an increase of 33% from the pre­vi­ous year.

– The influ­encer mar­ket­ing busi­ness is esti­mat­ed to soon reach a bil­lion SEK’s worth of the total adver­tis­ing cost in Sweden, says Julia Lundin.

Employees can find themselves in hot water

The mar­ket­ing law is clear. It applies to all mar­ket­ing, no mat­ter the media. If the pur­pose of a post is com­mer­cial, the post shall be marked as such. This also applies to those employed by the company.

But the ques­tion is if the mar­ket­ing law has kept up with the increas­ing num­ber of influ­encers and hired brand ambas­sadors. And if com­pa­nies and influ­encers are aware that any mar­ket­ing needs to be iden­ti­fied as such.

– When we have tried to clar­i­fy, in pre­vi­ous arti­cles, when you need to iden­ti­fy adver­tis­ing and when you don’t, both influ­encers and lawyers have not been entire­ly cer­tain. Nobody knows for sure. And as the RO is a self-reg­u­la­to­ry organ there are no sanc­tions against influ­encers, mean­ing that this wild west approach can sim­ply just go on, says Julia Lundin.

More brand ambassadeurs could be rebuked

Resumé’s review has awak­ened the debate on what con­sti­tutes your own opin­ion and what con­sti­tutes adver­tis­ing. Particularly the mat­ter of what employ­ees can say in social media with­out it con­sti­tut­ing advertising.

What is most notable is the RON’s deci­sion against Nocco’s brand man­ag­er Linus Carlén.

– He mar­kets prod­ucts from the com­pa­ny where he is an employ­ee. This sets the stan­dard that oth­er brand ambas­sadors may be tried and con­vict­ed. Many com­pa­nies and con­sul­tants have con­tact­ed us because they are uncer­tain of how to act, says Julia Lundin.

Subjective and tricky

After the deci­sions by the RON Yasmine Winberg and Julia Lundin have also looked at how the agree­ments between adver­tis­ers and influ­encers hired by com­pa­nies have been inter­pret­ed by the RON.

– How come an influ­encer who has signed on for three pic­tures but posts two extra for free, can be acquit­ted? While Linus Carlén, who every day is paid for his role at the com­pa­ny and has clear­ly stat­ed that his salary is not at all depen­dent on his activ­i­ty on Instagram, is con­vict­ed. It gets con­fus­ing, says Julia Lundin.

Julia Lundin tells us that Linus Carlén was acquit­ted in anoth­er case. The RON con­sid­ered that this par­tic­u­lar post was, to the aver­age con­sumer, clear advertising.

– This risks becom­ing sub­jec­tive, and tricky for the influ­encer to under­stand, she states.

Tougher restrictions abroad

The jour­nal­ist duo at Resumé are hop­ing that the review­ing of posts in social media will have raised aware­ness with influ­encers, influ­encer net­works, com­pa­nies and employ­ees, and that they will all rather be safe than sor­ry when it comes to mark­ing as advertising.

– But the grey zone is still sub­stan­tial and before a prac­tice is set in a legal court the uncer­tain­ty in the field is con­sid­er­able. We def­i­nite­ly see tougher restric­tions as regards the mark­ing of adver­tis­ing abroad while Sweden is still mark­ing time. This is why it’s appro­pri­ate to take the lead from oth­er coun­tries, says Julia Lundin.

Are we in a grey zone?

Mats Rönne, inde­pen­dent con­sul­tant and mem­ber of the Advertising Ombudsman’s Jury. Image: Private.

Are we in a grey zone? We ask Mats Rönne, inde­pen­dent con­sul­tant and for­mer chair­man of the asso­ci­a­tion for Swedish Advertisers and a mem­ber of the RON.

– Both yes and no, I’d say. There are some things that need to be marked as adver­tis­ing, and that’s when there is a com­mer­cial pur­pose and they refer to clear com­mer­cial mat­ters. But some things are just free speech. In that case we have the right to any kind of opin­ion. The grey zone is where these two worlds meet, says Mats Rönne.

Transparency is the answer

The ques­tion is if you, as an employ­ee, need to wor­ry about pro­mot­ing your com­pa­ny. Mats Rönne means that it is an advan­tage to all those who work for a com­pa­ny to always be trans­par­ent in their communication.

– Suppose you are an employ­ee of a com­pa­ny. The few­er hid­den agen­das you have, the more trans­par­ent you are in your com­mu­ni­ca­tion, he says.

Mats Rönne men­tions as an exam­ple that the RON dur­ing sev­er­al years has had recur­ring cas­es regard­ing so called natives. Natives are adver­tis­ing arti­cles that look and act like the host medi­um. These are reg­u­lar­ly found in breach of the ICC reg­u­la­tions by the RON as many lack a clear adver­tis­ing mark­ing, or it has been too vague.

– So it is always bet­ter to be trans­par­ent if you want to appear cred­i­ble. Transparency and cred­i­bil­i­ty goes hand in hand. When you mar­ket a prod­uct you need to be clear regard­ing the pur­pose. Exactly how you present your argu­ments and induce pur­chase is more free, he says.

The company is behind the ad

Mats Rönne stress­es that it’s impor­tant to remem­ber that the adver­tis­er has a big respon­si­bil­i­ty for the mar­ket­ing and how it is shaped and expressed. After all, it is the adver­tis­er who is the orig­i­na­tor of the marketing.

– As a pur­chas­er of adver­tis­ing it is there­fore impor­tant to have it all set down in a coop­er­a­tion agree­ment. In oth­er words, what am I expect­ing, what are my inten­tions? I need to know what I am pay­ing for and that both par­ties will stay with­in the bound­aries. The legal bound­aries is some­thing you, as an adver­tis­er, need to find out. But in prin­ci­pal, any­thing that hap­pens in your own mar­ket­ing chan­nels is risk free as long as the sender is vis­i­ble. Advertising in social media or oth­er, paid for, media, is stricter, says Mats Rönne.

What can com­pa­nies or influ­encers learn from the decisions?

– The impor­tant thing to remem­ber is that respon­si­bil­i­ty lies with all par­ties. If it is a com­mer­cial coop­er­a­tion – which it most often is – it is adver­tis­ing and should be marked as such. It is always bet­ter to be safe rather than sor­ry, says Mats Rönne.

On the safe side

So, what hap­pens if your co-work­ers speaks out pos­i­tive­ly in social media about your products?

Nothing, as long as they stay with­in the guide­lines of the mar­ket­ing law. According to the RON there is no gen­er­al reg­u­la­tion that stip­u­lates that adver­tis­ing must be marked as such – as long as it is clear that the con­tent is of a com­mer­cial nature. The impor­tant thing is that a con­sumer or a fol­low­er of the social media is not mis­guid­ed. If a post is com­mer­cial but could be con­fused with edi­to­r­i­al mate­r­i­al or sim­i­lar – mark it clear­ly as adver­tis­ing in the begin­ning of the post. Then you are on the safe side.

We have unsuc­cess­ful­ly tried to reach Linus Carlén, brand man­ag­er at Nocco, for a comment.

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