The same week that Nestle announced a $2.9 million campaign to promote fans’ personal “rituals” used to eat its stick-shaped KitKatbars, Kourtney Kardashian posted a video on her website and brand new mobile app (which joins her sisters’ mobile squad of apps) titled “6 Steps to Eating a Kit Kat” explaining her ritualistic method of slowly consuming one. Koincidence?
Of kourse not. But if the two are indeed connected, then this Kardashian is not keeping up with US Federal Trade Commission rules about disclosing ties between brands and endorsers.
In her video, Kourtney demonstrates her “life-changing” Kit Kat konsumption method, a technique she says she learned from sister Kim when they were “like, seven and eight.”
The video, originally posted on her subscriber-only behind a pay wall, has been shared on numerous sites from NBC’s Today Show to the syndicated Entertainment Tonight. Kardashian also tweeted the video to her 17.6 million followers on Twitter and shared with her 32.3 million followers on Instagram, too.
Nowhere in the video or the description does Kardashian mention a connection to KitKat’s parent Nestle or that it’s a sponsored post, which if true should be disclosed under FTC rules with (at least) the hashtag #spon or a verbal acknowledgement.
“It comes down to if Nestle paid her for it or if for some wildly crazy reason she just loved the idea of sharing how to eat a KitKat,” explains Stacy Jones, CEO of Hollywood Branded Inc., in an email tobrandchannel. Hollywood Branded is an entertainment industry leader in celebrity and brand integrations, including product placement on social media.
Jones calls the video “fantastic branded content.” But, she cautions, “If she was paid, then yes, according to the new FTC rules it appears a disclosure would be required because seemingly there would be confusion from viewers as to whether it was a paid endorsement, or simply an act of joy. At least I am confused.”
Last year, the FTC expanded its guidelines about “disclosing material connections between advertisers and endorsers.” The new case-specific guidance aims to be more specific about requirements on social media and new platforms such as Snapchat and Instagram.
As the FTC advises, any disclosure is better than no disclosure: “A simple disclosure like ‘Company X gave me this product to try’ will usually be effective.”
It reinforced those guidelines just last month, stating that disclosures were necessary in content where “even a significant minority of reasonable consumers would not recognize it as advertising.”
Nestle did not reply to requests about its relationship with Kardashian’s video tutorial, which may have involved E’s ad sales team for Keeping Up With the Kardashians, given the love from E! Online.
If Kourtney’s KitKat primer is not a paid endorsement then it is quite a coincidence—especially as it’s certainly clear from her social channels (where she recently plugged social media pest FitTea) and now her new app that she loves to name-check brands.
Just days before the Kardashian video, a Nestle spokesperson told the UK’s Prolific North site that the new global KitKat campaign “aims to drive sales further by engaging consumers with the rituals they have when they eat their KitKat.” And that’s certainly what Kourtney shared on her branded media channels.
Making the case more complicated is KitKat’s own reaction on social media. The brand thanked Kardashian for the video “even if it’s #BreakingTheRules” — a reference to its own hashtag and campaign and not any possible winking #BreakingTheRules of the FTC.
The FTC rules are not without bite as it has the power to levy fines. In 2014, ad agency Deutsch LA settled after it was caught using Twitter to promote Sony’s PlayStation products without disclosure.
But to date, the agency has publicly ignored the fact that many celebrities never got the memo (or, more likely, got the memo from their social media consultants but don’t care).
The legion of celebs ignoring the FTC rules certainly seems to already include the Kardashians. As The Fashion Law blog pointed out last month, the Kardashians’ recent (and longstanding) promotion of UGG boots was accompanied by no disclosures.
And it wasn’t the FTC but FDA officials who warned a pregnant Kim last year about an Instagram media post promoting a morning sickness drug without disclosing its side effects in another de facto ad by a Kardashian.
So far the Kardashians appear ignorant and immune to rules that have stung others.
ESPN was forced to apologize after its on-air sportscasters tweeted about Domino’s pizza without disclosing it was a sponsored (not spontaneous) deal for the chain’s New Year’s Eve promotion, a breach of ESPN’s Disney-watched ethics rules.
KitKat is no stranger to celeb-like viral social media viral success. Last month it broke itself off a piece of Kardashian-like Twitter love (100,000-plus retweets) when it responded to news that One Direction was breaking up, at least temporarily.