The ruling concerned two posts made on X (previously Twitter) made by the brand's founder and former boxer Anthony Fowler and former professional footballers John Hartson and Matt Le Tissier, who received commission for sales generated from their posts.
The first tweet by Hartson stated: “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”.
His second tweet 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]”.
A tweet by Fowler, in response to someone asking “does this really work for anxiety and insomnia?”, stated “Yes mate read the comments on his pinned tweet”.
A further tweet with an embedded video by Le Tissier, stated: “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”.
In the video he made the 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”.
The CAP Code on statement made with commercial intent
The CAP Code (Code of Non-broadcast Advertising and Direct & Promotional Marketing) states that marketing communications must be obviously identifiable as such and that they must make clear their commercial intent.
The ASA stated: “There was nothing within their content, such as ‘ad’ placed upfront, which made clear to those viewing that these were ads.”
The stated and implied claims in the posts that Supreme CBD products could help anxiety and insomnia were claims to prevent, treat or cure disease which were in breach of the Code.
Le Tissier was, and Hartson had been, brand ambassadors for Supreme CBD and were featured within an “Ambassadors section” on the Supreme CBD website. The ASA therefore considered this constituted a commercial relationship with the brand.
What’s more, Fowler was the owner of Supreme CBD.
The ASA reported: “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.”
Verbal agreement and free product
Supreme CBD Ltd responded to ASA by stating there was no official contract in place with Hartson other than a verbal agreement that he would receive a small amount of commission from his codes, as well as some free products.
They said that 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.
Hartson 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 the post and immediately withdrew the facility for tweets to be sent on his behalf. He also stated he was no longer working with Supreme CBD. He said that he acknowledged in some instances his tweets had made claims that he could not substantiate.
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.
He additionally 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 was unacceptable. He said he would ensure he did not mention any medical benefits in the future.
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.
He also said they had been unaware that the posts had made medical claims and said that they would refrain from making such claims in the future.
Ambassadors and employees
“Companies need to recognise the communication of the benefits of food and drink in exchange for free goods or any form of financial compensation makes the influencer or ambassador an employee,” Mark Tallon, chief executive officer at Legal Products Group Ltd, said in response to the ruling.
“Thus, this employee must make clear any discussion is an advertisement. These are commercial communications and thus within remit of both health claims and medicines legislation.”
He added that this case highlights three important legalities: Anxiety, depression and insomnia are illegal medicinal claims when applied to a food; CBD isolates or extracts have no permissible health or nutrition claims; and communications by paid individuals should be made clear that such communication is and advert.