Ad description
A TikTok post on Tasha Ghouri’s account @tashaghouri1, seen on 3 November 2022, featured a music track “Hold Me Closer” by Elton John and Britney Spears which played in the background during a video montage of her day-to-day life. A caption alongside the video stated “[heart emoji] #TinyDancer #HoldMeCloser soundad”. A further caption stated “[music note symbol] Hold Me Closer - Joel Corry Remix – Elton John & Britney Spears”.
Issue
The complainant challenged whether the ad was obviously identifiable as a marketing communication.
Response
EMI Records, a division of Universal Music Operations Ltd, said it was their standard practice when working with influencers to ask for the “musicad” or “soundad” tag to be attached. They believed that was an appropriate and obvious way to identify when an influencer had been paid to use a particular piece of music as the soundtrack for their content. They contrasted that approach for labelling ads with the use of “advertorial” or branded content in posts where the entire content was branded, involved product placement in the visuals or was sponsored by a third party.
EMI Records provided examples of influencer posts that included “MusicAD” or “#musicad” in the caption. They said that a quick scan of TikTok revealed more than 450 million uses of the “musicad” and/or “soundad” hashtags. In their view, the scale of such use indicated that those had become the accepted and widely understood way to identify such campaigns to consumers.
Off Limits Entertainment (Off Limits), responding on behalf of Ms Ghouri, pointed out that the caption clearly stated “soundad” in the first line. They believed that was more than sufficient to identify the track as an ad.
TikTok said the video appeared to be branded content. They added that if the influencer had used the Branded Content disclosure tool, which was required under their Terms of Service and Branded Content Policy, the post would have been identified as a marketing communication.
Assessment
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 first assessed whether the post was a marketing communication for the purposes of the Code. We understood that there was a contractual agreement between EMI and Tasha Ghouri under which she was paid to feature the soundtrack “Hold Me Closer” in the post. We considered that the requirement to feature the song in her post, under the terms of the contract, established that EMI Records had sufficient control over the post’s content, in conjunction with the payment arrangement, for it to be considered a marketing communication that fell within the remit of the CAP Code.
We then assessed whether the post was obviously identifiable as a marketing communication. We acknowledged that the post included the label “soundad”, which was intended to convey that Ms Ghouri was specifically promoting the music soundtrack of the post, rather than, for example, a product or brand in the post’s visual content. We considered, however, it unlikely that all UK TikTok users would understand the meaning of the label “soundad”. We considered the “ad” part of the label was insufficiently prominent and we considered that it could be interpreted as a misspelling of “sounded”. We therefore considered that the label “soundad” was not sufficiently clear to indicate that the post, in particular the soundtrack, was advertising. We concluded that the post was not obviously recognisable as a marketing communication and therefore breached the Code.
The ad breached CAP Code (Edition 12) rules 2.1, 2.3 and 2.4 (Recognition of marketing communications).
Action
The ad must not appear again in the form complained of. We told Universal Music Operations Ltd and Tasha Ghouri to ensure that their future posts were obviously identifiable as marketing communications, including where the audio content of a post was advertising, for example, by including a clear and prominent identifier such as “#ad” at a minimum.
