Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
Four X (formerly Twitter) posts from the accounts of John Hartson @JohnHartson10, Anthony Fowler @afowler06 and Matt Le Tissier for Supreme CBD:
a. The first tweet by John Hartson, seen on 5 February 2023, featured the text “Retweet and comment if you’ve tried these CBD gummy bears before bed they are honestly magic from @Supreme_cbd leave a comment an [sic] I’ll buy one of you a box or anyone else use code Hartson40 at supremecbd.uk/collections/al…believe me they help you sleep so much better with less anxiety”. Below the text was an image of Supreme CBD’s Large Gummy Bears product with an option to select quantity and a link to “Add to Cart”.
b. The second tweet by John Hartson, seen on 6 February 2023, stated, “Hello Dave tell your Mrs I’ll buy her a box to help with her anxiety, @supreme_cbd is changing peoples lives for the better, I’ll DM you details [thumbs up emoji]”.
c. A tweet by Anthony Fowler, seen on 6 February 2023, tagging @JohnHartson10 and @supreme_cbd, in response to a tweet which replied to ad (b) asking, “John does this really work for anxiety and insomnia?”, stated “Yes mate read the comments on his pinned tweet”.
d. A tweet with an embedded video by Matt Le Tissier, seen on 15 May, tagging @Supreme CBD, featured text “I’ve been very sceptical of a lot of things including @supreme_cbd when it was first recommended to me, but it’s honestly a game changer for people with anxiety/depression any aches/pain or insomnia, my followers can save 40% with code Tiss40 at checkout supremecbd.uk”. The embedded video included Matt Le Tissier with three types of CBD product. In the video he made claims, “These gummies people are just telling me how well they are sleeping after taking these, helps a lot with the anxiety as does the oils” as well as “People are saying how these things are changing their lives”.
Issue
1. The complainants, who understood that John Hartson and Matt Le Tissier were brand ambassadors for Supreme CBD, challenged whether ads (a), (b) and (d) were obviously identifiable as marketing communications and did not make clear their commercial intent.
The ASA challenged whether:
2. ad (c) was obviously identifiable as a marketing communication and did not make clear its commercial intent, because we understood Anthony Fowler was the owner of SupremeCBD; and
3. the stated and implied claims in ads (a) to (d) that Supreme CBD products could help anxiety and insomnia were claims to prevent, treat or cure disease which were in breach of the Code.
Response
1. Supreme CBD Ltd said Supreme CBD was Anthony Fowler's own brand, and they did not consider that his relationship with John Hartson was commercial. They said there was no official contract in place other than a verbal agreement that Mr Hartson would receive a small amount of commission from his codes, as well as some free products. They said Mr Hartson had originally come to the brand as a paying customer, before becoming part of the Supreme CBD community. They said they had not been responsible for Mr Hartson’s tweets and he had not been given any guidance.
They said that Matt Le Tissier was an affiliate and received commission from his personalised code, but there was no official contract and the arrangement had been made verbally. They explained that there were no restrictions in terms of what he was allowed to post about the brand.
Mr Hartson said he had used Supreme CBD in a personal capacity and for that reason became a brand ambassador. He said that he did not have an official contract with Supreme CBD, but since he had a substantial social following, they offered small remuneration payments for the use of his social media platforms that had been agreed verbally. He said all activity was conducted by Supreme CBD directly, and that they had also requested that he film a small number of short videos that they embedded into content posted on his pages. On receiving the complaint notification he acknowledged that tweets sent in his name should have been labelled as ads. He amended ad (a) and had immediately withdrawn the facility for tweets to be sent on his behalf. He said he would ensure that all future tweets would be labelled clearly as marketing material. He also stated he was no longer working with Supreme CBD.
Mr Le Tissier said that while he did not have a formal contract with Supreme CBD, and there was no control over his posts by the brand, he did receive commission. He said in future he would include an appropriate identifier on his posts.
2. Anthony Fowler said that since Supreme CBD was his own brand, he did not class himself as an influencer. However, he recognised in future his posts would need to be obviously identifiable as advertising.
3. Anthony Fowler for Supreme CBD said they had been unaware that the posts had been making medical claims and said that they would refrain from making such claims in the future.
John Hartson said that he acknowledged in some instances his tweets had made claims that he could not substantiate.
Matt Le Tissier said that he had been referring to personal experience and feedback he had received from others, and was unaware that talking about the benefits of the products would be unacceptable. He said he would ensure he did not mention any medical benefits in the future.
Assessment
1. Upheld
The CAP Code stated that marketing communications must be obviously identifiable as such and that they must make clear their commercial intent, if that was not obvious from the context.
The ASA understood that there was a financial agreement in place between Supreme CBD and both Mr Hartson and Mr Le Tissier, and that they both received commission for sales generated from the use of their personalised codes by consumers. Those personalised codes were therefore directly connected with the supply of goods provided by Supreme CBD, and because of that, posts (a) and (d) were considered ads for the purposes of the Code. We understood that as part of the financial agreement, Mr Hartson had given Supreme CBD direct control of his social media accounts and they were responsible for all his posts about Supreme CBD; that included ad (b).
We also understood that Mr Le Tissier was, and Mr Hartson had been, brand ambassadors for Supreme CBD and were featured within an “Ambassadors section” on the Supreme CBD website. They each had their own individual ambassador profile page that included personal information and imagery as well as product links for their “product of choice” that linked through to product purchase pages. Ads (a), (b) and (d) each featured the tag “@Supreme_CBD”, and referenced the products that linked to their “product of choice” that were seen on their brand ambassador page. We considered it was likely that as a brand ambassador there would be an expectation that they would be positive about the brand. The role of brand ambassador, we considered therefore constituted a commercial relationship with Supreme CBD, and further underlined that they had a relationship with the brand. All their posts made about Supreme CBD, therefore, fell within the remit of the CAP Code.
For those reasons we considered the commercial intent of posts (a), (b) and (d) should have been identifiable as such. However, there was nothing within their content, such as ‘ad’ placed upfront, which made clear to those viewing that these were ads.
We welcomed Mr Hartson’s and Mr Le Tissier’s amendments and acknowledged that Mr Hartson was no longer a brand ambassador for Supreme CBD. However, in the absence of clear and prominent identifiers at the time ads (a), (b) and (d) were seen, we concluded that they were not obviously identifiable as marketing communications and as such breached the Code.
On that point, ads (a), (b) and (d) breached CAP Code (Edition 12) rules 2.1 and 2.3 (Recognition of marketing communications).
2. Upheld
As above, the CAP Code stated that marketing communications must be obviously identifiable as such, and that they must make clear their commercial intent if that was not obvious from the context.
We understood that Mr Fowler was the owner of Supreme CBD and therefore had a commercial interest in the brand. Ad (c) was a response to a tweet about whether a Supreme CBD product worked for anxiety and insomnia, and therefore was a direct endorsement of the product referenced. We considered that from the post itself, it was not clear that Mr Fowler had a commercial interest in Supreme CBD. The commercial nature of ad (c) therefore should have been made clear.
We assessed the post as it appeared within X (formerly Twitter) and considered that there was nothing within the content that made it clear to those viewing that the post was an ad. We welcomed Mr Fowler’s engagement with the ASA; nonetheless, we considered the post was not obviously identifiable as marketing communication and concluded the ad breached the Code.
On that point, ad (c) breached CAP Code (Edition 12) rules 2.1 and 2.3 (Recognition of marketing communications).
3. Upheld
The CAP Code stated that claims which stated or implied a food could prevent, treat or cure human disease were prohibited.
The ads made a number of claims that we considered would be interpreted by consumers as claims to prevent, treat and cure human disease. In particular, ad (a) stated, “believe me they help you sleep so much better with less anxiety”, ad (b) stated, “I’ll buy her a box to help with her anxiety, @supremecbd is changing peoples [sic] lives for the better”, and ad (c) stated, “Yes mate read the comments on his pinned tweet” in reply to the question “[…] does this really work for anxiety and insomnia?”. In addition, ad (d) stated, “a game changer for people with anxiety/depression […] or insomnia”, “people are just telling me how well they are sleeping after taking these, helps a lot with the anxiety as does the oils” and “people are saying how these things are changing their lives”.
We welcomed Supreme CBD, Mr Fowler’s, Mr Hartson’s and Mr Le Tissier’s assurance that the claims would be amended. However, because at the time the ads were seen they included claims that a food supplement could prevent, treat or cure disease, we concluded that they breached the Code.
On that point, the ads (a), (b), (c) and (d) breached CAP Code (Edition 12) rules 15.6 and 15.6.2 (Food, food supplements and associated health or nutrition claims).
Action
The ads must not appear in their current form. We told Supreme CBD, Anthony Fowler, John Hartson and Matt Le Tissier to ensure their future ads were obviously identifiable as marketing communications, and that identifiers such as ‘#ad’ were used and were clearly and prominently displayed. We also told them to ensure their future ads did not state or imply that the products could prevent, treat or cure human disease.
