What’s an endorsement and what’s just standing next to an anthropomorphic kiwifruit?

*The Spinoff is not offering legal comment on the endorsement, or lack thereof, for specific products.

Yesterday, prevention of family and sexual violence minister Marama Davidson was chastised by the prime minister for posting a photo of herself in front of parliament holding five blocks of chocolate in her hands. The post, said Davidson, was a show of support for the Māori translations used in Whitaker’s latest creamy milk (or miraka kirīmi) release. Davidson was making a point, a point that surprised no one given her heavy use of social media and outspoken views on social topics.

When Jacinda Ardern was asked about the post, she cited cabinet rules that require all ministers to refrain from endorsing specific products. “I have asked and will ask the cabinet office to just make sure they’re in touch with the minister to be really clear on how those rules apply,” she said.

Ardern agreed with a suggestion that Davidson remove the post. “I think that would be the most advisable way forward just to be really clear and not to be seen to be promoting products.”

Instead, Davidson has updated her post to say that she actually doesn’t like the product – more specifically, “F**ken I don’t even like this flavour” – but loves te reo Māori and was endorsing that.

“I am promoting te reo Māori, I am promoting organisations who are stepping up particularly trusted and popular organisations,” Davidson initially said, before amending the post to remove the more explicit endorsement of Whittaker’s. It is understood the issue is still with the cabinet office. Does Davidson’s amendment count as removing the endorsement? And does potentially pissing off the prime minister matter? Here’s the cabinet manual and an assessment from legal expert Andrew Geddis:

“It isn’t actually a question of law. The cabinet manual is a bit like the pirates’ code: ‘More what you’d call guidelines than actual rules.’ As such, its interpretation and application in any given case ultimately lies in the hands of the prime minister; if she believes it has been breached, then it has been and she can decide on what consequences (if any) ought to follow. Of course, in making this assessment the prime minister gets advice from the cabinet office, which will be coloured by any similar cases in the past. But ultimately the decision on whether Davidson’s post is acceptable or not falls to Jacinda Ardern to make.”

That last point in the cabinet manual suggests Davidson could argue she was supporting the “objectives” of Whittaker’s rather than the specific product. And there’s no distinction made between social media and traditional media (or any mention of social media at all).

While we don’t have the records from the cabinet office of past endorsement issues, and with the obvious caveat that posting on one’s own social media is distinct from having a photo taken by a news outlet or reporter, here is a very much incomplete list of ministers who may or may not be endorsing a specific product or business. (H/t Brendan Kelly who posted about this.)

Grant Robertson and KK Malaysia 

Deputy prime minister Grant Robertson loves the beef rendang from KK Malaysia in Wellington. This could be read as a very strong endorsement for a particular product and business.

Jacinda Ardern and Zespri

The dancing kiwifruit in Japan were genuinely thrilling and lovely and inspired much content. Ardern gamely took a photo with them and that photo was seen by millions of people. An endorsement? As Geddis noted, that’s up to Ardern to determine.

Chris Hipkins and Coke Zero

 

Is product placement, accidental or not, an endorsement? In movies it is. In parliament it’s a matter for the cabinet office. Either way, minister-of-everything Chris Hipkins loves Coke Zero.

John Key and the All Blacks (and Steinlager)

As much as we like to believe otherwise, the All Blacks is a brand. Virtually every prime minister has endorsed this particular brand at some point. Also Steinlager.

Jacinda Ardern and New Zealand Women’s Weekly Kids’ Party Cakes

This is a series on Ardern’s Instagram page each time she makes a birthday cake for her daughter. Another post references the Australian Women’s Weekly cake book which may have been a typo. It’s an old product so there may be a statute of limitation on endorsements.

Jacinda Ardern and Silver Fern Farms

It would likely be argued that this is an endorsement of an objective rather than a specific product.

Stuart Nash and New Zealand Functional Foods

Same with this one.

John Key and Tuatara

John Key did a lot of (not) endorsing in the lead up to the 2011 Rugby World Cup.

Jacinda Ardern and Whittaker’s 

 

This wasn’t posted on Ardern’s own account but it was happily posed for. When asked by local site The Spinoff if Ardern was eating Cherry Ripes, it was reported that she was in fact eating Whittaker’s almond gold.

With cameras everywhere, it’s probably quite hard to not accidentally endorse products all the time. An inadvertent endorsement likely has the same effect as a purposeful endorsement. Galaxy brain but maybe the cabinet manual could use a refresh to take into account modern day realities.

Jacinda Ardern and Whittaker’s again

 

This is a fascinating case study. Urzila Carlson rallied some friends for a mother’s day post that heavily features blocks of Whittaker’s chocolate. The caption also invites viewers to “eat the chocolate”. Ardern appears in the video as prime minister (filming her segment in her office) and very cleverly doesn’t hold a block of chocolate or mention Whittaker’s, though she does play along with the chocolate-themed gag. Is she endorsing the product? She has appeared in what could very easily be seen as an ad of sorts for the brand, despite avoiding saying so outright.

But is it an endorsement? Luckily for Ardern, that’s up to the prime minister to determine.

Update:

Stuart Nash and Limery

As the anonymous commenter suggests, this reads like a straight up #ad from minister of economic development Stuart Nash. He even tagged in the company. Unrelated but equally concerning: he also tagged #intermittentfasting.

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