The Dragon’s Den star and entrepreneur Steven Bartlett has been in the news this week for the wrong reasons.

The advertising regulator, the Advertising Standards Agency (ASA) has upheld complaints about three adverts. Two of the complaints were about adverts paid for by the plant-based food manufacturer Huel Limited (Huel) and the other one was about an advertisement paid for by the science and nutrition company Zoe Limited (Zoe).

The adverts in question were posted on Facebook and are described below:

Ad1 was an image of Huel’s Daily Greens drink with the text: “‘This is Huel’s best product’ Steven Bartlett”. There was also a caption which stated: “Ever wondered what Steven Bartlett actually thinks of Huel’s Daily Greens?”

Ad2 featured two videos which were shown next to each other, one showed Steven Bartlett and the second video showed people looking at their mobile phones. Steven Bartlett endorsed the product by saying “This is the best product that Huel have released.”

Ad3 contained an image of Steven Bartlett with a Zoe patch on his arm, and some text stating that Zoe “would change your life.”

In relation to Ad1 and Ad2, the complainants said that the advert should have explained that Mr Bartlett was a director of Huel. The complaint was similar in relation to Ad3, that Mr Bartlett was an investor in Zoe and that information wasn’t included in the adverts. 

Huel’s response

Huel confirmed that Mr Bartlett was a director, and that the adverts were identifiable as ads because Facebook uses “sponsored” labelling. Huel also said that it was clear they were the advertiser because of the presence of their logo, the blue tick that verified their name, their website URL and the contents of the ad.

Huel went on to say that it was common practice for celebrities to endorse products in the context of consumer relationships and Mr Bartlett had invested in Huel because he liked their products.

Zoe’s response

Zoe also stated that Mr Bartlett was a well-known personality and that the average consumer would understand that there is a commercial relationship between Zoe and Mr Bartlett. They added that consumers didn’t need to know the detail of the relationship and they would assume that Mr Bartlett had been paid.

Within their response, Zoe also said that Ad3 was “obviously identifiable as an ad” and that it was unclear how consumers were misled.

CAP Code

In making its decisions, the ASA referenced the CAP Code and stated that the CAP Code says that advertisements must not mislead consumers by omitting material information.

The relevant sections of the CAP Code state:

“3.1 Marketing communications must not materially mislead or be likely to do so.

3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.

Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.”

ASA Decision

The ASA did acknowledge that the ads were “obviously identifiable” as marketing communications and that when Mr Bartlett appears on Dragon’s Den, he provides opinions about businesses but doesn’t invest in them all.

The ASA also added, consumers were unlikely to understand that Mr Bartlett had a financial interest in Huel’s performance and the fact that Mr Bartlett was a director was “material to consumers understanding of the ads” and it was “relevant” to them making informed decisions.

The ASA concluded that the ads were likely to mislead because Mr Bartlett was a director and that relationship was omitted from the ads.

In relation to Zoe, the ASA considered that many consumers would interpret the ad as featuring a testimonial from Steven Bartlett. It found that the advert had breached the CAP Code because the advert omitted information about Steven Bartlett being an investor in Zoe.

Comment

The striking thing about the ASA’s decision is that when you read Huel and Zoe’s responses, they had clearly given thought to making it clear that the adverts were paid for and not, by contrast, independent editorial reviews. Despite this consideration, the ASA found that the origin of the adverts was not as transparent as it should have been and the ASA underlined that details of commercial relationships should always be included.

We have seen here that any businesses that use “celebrity” endorsement in their advertising should clearly state if there is a relationship between the celebrity and the business i.e. if the “celebrity” is an investor, director or otherwise paid by the brand. This should also extend to influencers.

The recent decisions are a reminder that the ASA can, and will, take action against businesses they consider are misleading consumers.

It is therefore sensible for brands to take legal advice prior to publishing adverts so that they can be cleared for compliance with the CAP Code.