Yesterday (7^th March 2012) the Advertising Standards Agency announced that it has decided not to uphold the complaints about the recent high profile Twitter marketing campaign for Snickers.

I’m sure most of you are aware of the back story of how Snickers, through its parent company Mars, arranged for five celebrities to make humorous but rather incongruous tweets in quick succession. Their initial tweets made no reference to Snickers, but contained content that you would never expect from that particular celebrity, and which therefore piqued followers’ interest and made some wonder whether the celebrity’s Twitter account had been hacked.

Celebrities used in the campaign were Amir Khan, Sir Ian Botham, Katie Price, Cher Lloyd and Rio Ferdinand. For example, Katie Price starting tweeting about the current economic situation, with posts including “Great news about China’s latest GDP figures!!” and Rio Ferdinand tweeted about his new found love of knitting with tweets such as “Can’t wait 2 get home from training and finish that cardigan!!”. For each celebrity, their final tweet was a reveal tweet, showing that it had all been part of a stunt for Snickers. That final tweet said “You are not yourself when you are hungry @SnickersUK #hungry #spon” (and contained a link to a photo of the celebrity eating a Snickers).

Once all was revealed, this campaign attracted the ire of one particular journalist who tried to argue that the fact that the initial four tweets were not marked “#spon” was in breach of the ASA and Ofcom regulations concerning misleadingness and the recognition of advertising communications. Some commentators have also questioned whether using #spon was widely recognised enough for users to understand that the reveal tweet was disclosing the fact that it was a paid-for campaign by Snickers. More broadly, some have questioned whether the campaign was successful (even though it has certainly generated an enviable amount of column inches) because of the anger it provoked on Twitter, where some of the target audience felt duped by Snickers, and the celebrities involved.

Leaving aside the question of whether a teaser campaign like this is an effective marketing method or simply something that will leave your target audience feeling annoyed, the ASA decision does pave the way for advertisers to run teaser and reveal campaigns on Twitter, just like in any other media.

The ASA rejected the argument by Mars that the first four tweets which made no reference to Snickers were simply not marketing communications. They pointed out that there had been other marketing activity around the “You’re not yourself when you’re hungry” campaign, such as the television commercials featuring Joan Collins and Stephanie Beecham, and the initial tweets formed part of that overall marketing push.

But the ASA accepted that the four tweets were all in quick succession and that, along with the fifth reveal, they should be considered together as a whole. On that basis, the campaign was identified as a piece of paid-for marketing in accordance with the CAP Code and, by implication, with the Office of Fair Trading (OFT) Guidelines on celebrity endorsements using social media. The ASA also agreed that the use of hashtags such as #spon and #ad are one of the ways that marketers can disclose the commercial intent of their marketing messages on social media platforms.

One of the interesting things this adjudication highlights is the continued endorsement by the UK’s regulatory bodies (such as the ASA, OFT and Internet Advertising Bureau (IAB)) of disclosure hashtags like #spon and #ad. Most marketers on this side of the pond hate having to use hashtag disclosures to highlight that a campaign is marketing, particularly when the campaign is more about word of mouth advocacy of brand ambassadors, rather than a one-off creative stunt like the Snickers campaign. #ad and #spon are disliked because they can look ugly, don’t tell the consumer a great deal, and importantly, eat into the 140 character limit for each tweet. In the US, hashtag disclosures are much more widely recognised and accepted by marketers and consumers which may be because of a cultural difference – US consumers are simply much more used to seeing lengthy legal disclosures in all walks of life than we are in the UK. In the US, third party technical solutions are becoming widely used for social media campaign disclosures instead of simple hashtag disclosures, as they allow marketers to insert bit.ly links into their tweets which then link to a much nicer looking disclosure page (which can also help with measuring and metrics).

Whatever the solution used, it is clear that UK social media marketers do need to grapple with disclosures when engaging in a social media campaign in order to make sure that everyone is clear that the tweet, status update, blog or post is a marketing communication. The Snickers campaign is a sensible decision by the ASA, which paves the way for marketers to run teaser campaigns on Twitter, just as they can in other media. But for other brand advocacy and word of mouth campaigns on Twitter, the thorny question of how to be transparent when conducting the promotion remains. UK marketers may not like it, but for the time being at least, #ad and #spon have got the green light from the ASA, IAB and OFT.

Jo Farmer is a partner in the Media, Brands and Technology department at law firm Lewis Silkin LLP