The Advertising Standards Authority (ASA) ruled on Wednesday that influencers with over 30,000 followers are “celebrities” and must adhere to the CAP Non-Broadcast Code, the rulebook which governs non-broadcast advertising, sales promotions and direct marketing in the UK when posting content.

The content in question was posted by Sarah Willox Knott on her Instagram account, @ThisMamaLife, in February 2019. The post featured a photo of Knott in bed smiling with a packet of Phenergan Night Time tablets on her bedside table. The caption of the post stated:

“[AD] Sleep. Who needs more of it? I’m really lucky in that I don’t actually need a lot of sleep to get by and manage to cram all sorts into my evening, being the night owl I am. Every now and again though, daily life can get a bit overwhelming and I often find it’s my sleep that ends up suffering. I end up going to bed even later than I usually do and am not able to fall asleep. The worry of not sleeping then adds to it all and I end up a complete and utter zombie!! Last time this happened I tried out Phenergan Night Time, which really helped. 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. Do you guys fall asleep easily or are you night time over thinkers like me? #AD #sleep”

Rule 12.18 of the CAP Code states that marketers must not use health professionals or celebrities to endorse medicines. The ASA considered whether the ad used a celebrity to endorse a medicine, namely Phenergan Night Time.

Sanofi, the manufacturer of the medicine, responded that Knott’s Instagram account had a niche following and was therefore unlikely to influence medical decisions taken by consumers. Sanofi argued that Knott (who had 32,000 Instagram followers as of April 2019) could not be considered a celebrity when compared to other recognised celebrities such as David Beckham (55 million Instagram followers) and Stephen Fry (359,000 Instagram followers). Sanofi also referred the partnership with Knott to the Proprietary Association of Great Britain (the trade association for consumer healthcare in the UK) for approval prior to posting the ad.

The ASA noted that consumers would understand the caption of the ad to mean that Knott had used and recommended the product, concluding that Knott had endorsed the medicine.

Knott describes herself as a family blogger/vlogger and regularly produces content across different social media platforms relating to her experiences as a parent. Her Instagram feed features over 1,000 posts which include recommendations of various products.

Despite Sanofi’s arguments to the contrary, the ASA considered that Knott’s 30,000 followers meant she was popular with, and had the attention of, a large audience. As such, the ASA ruled that Knott was a celebrity for the purposes of the CAP Code, and she had endorsed a medicine, meaning the ad breached the Code.

The Ruling marks the first time an influencer has fallen foul of the ban on celebrity endorsements of medicines and comes after fellow influencer Sophie Hinchcliffe was investigated by the ASA in June for failing to identify sponsored posts on her Instagram account. Over the last few years, Instagram posts by many other influencers such as Louise Thompson, Millie Macintosh, and Marnie Simpson have also been subject to ASA action.

In practice, the effect of the Ruling is limited because most of the Code does not distinguish between celebrities and non-celebrities. Nevertheless, the Ruling highlights the need for brands, PR companies and influencers alike to pay close attention to the CAP Code before posting sponsored content on social media.

Despite the Ruling, influencers with fewer than 30,000 followers should not be considered to fall outside the scope of the Code due to any absence of ‘celebrity’ status – complaints relating to content posted on less popular accounts will still be considered by the ASA on a case-by-case basis.

Further reads: Social Media Hazards: protecting your brand in an influencers’ world

• Share this blog

• Twitter
• Facebook
• Linkedin