Two recent cases have highlighted the unclear bounds between brand and influencer deals.

Both Thermomix and Cygnett have fallen afoul of the AANA Code of Ethics, after two Instagram posts were deemed to have been undeclared advertisements.

Survivor contestant Sophie Cachia’s rhapsodic post about her “just simply life changing” Cygnett charging cord was deemed to be an undeclared paid advertisement, after she failed to disclose her ongoing marketing deal with the tech company.

Cachia posted on Instagram about her love affair with the Cygnett charging cable.

“Found my baby!!!! @cygnett Nobody charges my phone like this cord here. Whenever I lose it, it’s devastating (aka Bobby steals it for his iPad) I will neverrrrrrr go back to any other cord. Not spon, just simply life changing when you need your phone constantly & charged SO fast.”

She also posted a link to Cygnett.com.

The complaint lodged to Ad Standard was blunt: “Sophie is obviously getting paid to be an ongoing ambassador for this product/brand (Cygnett) and should clearly display that it is a paid post.”

Ad Standards agreed.

In response, Cygnett acknowledged its agreement with Cachia, but stressed the promotion was done without the company’s knowledge, and wasn’t directly paid for.

“This promotion by Sophie Cachia was created and published without Cygnett having any prior knowledge, nor was it financially supported by Cygnett in anyway,” the company told Ad Standards.

“Cygnett openly acknowledges the company has an agreement with Sophie Cachia regarding paid Cygnett brand endorsements on social media. All of these posts are planned ahead of schedule with Sophie Cachia and her team. This is the first time to our knowledge that Sophie has ever posted about Cygnett outside her paid agreement.

“I do understand the idea of a ‘grey area’ when a brand such as Cygnett has an ongoing agreement with an influencer like Sophie Cachia.

“I will instruct Sophie’s team to ensure all future Cygnett brand posts call-out her partnership, however in this specific case, the promotion was not supported or paid for by Cygnett, so it cannot be deemed a paid post.”

The company then asked:

“If an influencer decides to post without permission or knowledge of a brand, why is the brand held responsible?”

It’s a worthy question.

But the Ad Standards board found it breached the code, noting Cachia’s existing relationship with the brand and the specific mention of the post being “not spon” confused the matter.

It found the “product-specific post, with the image being solely of the product held by the influencer’s hand, the tagging of the brand, the strong endorsement in the text, along with the product’s website placed on the right side of post, were all indicators that the post is an advertisement”.

The relationship between Thermomix and Sarah Kearns is equally opaque.

Self-styled parenting influencer Kearns did a paid promotion of a Kobold cordless vacuum, and received the Thermomix as part of her payment.

She then did a Thermomix post, which was less obviously sponsored.

Thermomix claims the idea to post about the product was Kearns’ decision alone.

Kearns’ post showed the inside of a mixer, with the text:

“Ok Tuesday is normally quick dinner/takeaway as knox has art until 5:30 and we aren’t home till 6. Tonight I made a butter chicken in less time than it would have taken to grab takeout! Will keep the thermomix updates coming for those interested.”

The complaint argued: “The Thermomix was gifted to Sarah Kearns, ostensibly for promotional reasons. It has not been declared as a paid advertisement or listed as gifted, or anything to indicate a relationship between Thermomix and Ms Kearns. Thermomix is tagged, in very small white writing hidden against a white bench top.”

Thermomix adopted the same argument as Cygnett

“Mr Kearns was engaged to promote only the Kobold. She had no authority, direction or retainer to promote the TM6 appliance,” they told Ad Standards.

“Any promotion of that appliance, if it has occurred, was without this company’s knowledge or approval, nor as a paid sponsorship.”

The Ad Standards Panel considered that “the advertiser had provided the product to Ms Kearns as part payment for her previous work, and that in agreeing to provide the product to the influencer in the context of an ongoing commercial arrangement the advertiser was exercising a degree of control and that the story did draw attention to the product.”