Another day, another celebrity in the ASA bad books

Mylene Klass has had her collar felt this week by the ASA after failing to make clear that three Instagram posts were adverts. The posts which promoted products by Next Retail Ltd and Skechers UK and with her own book were challenged on the basis that they were not identified as adverts and should therefore not be seen again.

The first post featured text that said “What do you wish they’d taught at school? I asked my mates” and showed her book being passed around celebrities and ended with her holding her book with the text “Wish granted”. The ad was challenged on the grounds of whether it was obviously identifiable as a marketing communication. The ASA welcomed Ms Klass’ assurance that she would be adding #ad to her posts in the future, but that did not negate the fact that at the time the complaint was made, the post’s commercial intent had not been made clear upfront and concluded that it breached the CAP Code.

Later in the year Ms Klass shared photos of herself wearing clothes from Next and included the text tagged with MyleeneKlassXNext and @nextofficial. The complainant again challenged whether the ads were obviously identifiable as marketing communications. Next stated that they did have a manufacturing and endorsement agreement in place which stipulated that Ms Klass should promote and endorse the Next brand such as posts on social media and she should make it clear in such communications that she had a commercial relationship with Next. Next also stated that it was widely reported in mainstream media that she had a collaboration with Next and they believed that it would be understood by those who saw the posts that she was promoting her collection with Next. The ASA understood that there was a commercial relationship between Ms Klass and Next and that she would receive a royalty payment on the sales of the products she promoted. The ASA considered therefore that Next had sufficient control over the content of the social media posts and that they were to be considered as marketing communications falling within the remit of the CAP Code. Therefore, the posts would need to be obviously identifiable as such and Next and Ms Klass were jointly responsible for ensuring that such promotional activity complied with the CAP Code. The ASA also considered that whilst the collection had been widely reported, the Instagram posts may be viewed in isolation and that not all users would be aware of the pre-existing relationship between them. The ASA therefore held that the ads breached the CAP Code and that both Next and Ms Klass should ensure that future ads were obviously identifiable as marketing communications, for example, by including a clear identifier such as “#ad”.

Ms Klass shared images of herself wearing items by Skechers and again a complaint was made as to whether the ads were obviously identifiable as such. Skechers, like Next, responded stating that they did have a contractual relationship with Ms Klass and the posts were part of that relationship. They said the contract between them required that Ms Klass complied with all applicable laws, including advertising laws. As with Next, the ASA understood there was a commercial relationship between Skechers and Ms Klass and the posts were made under the agreement, as such both parties were jointly responsible for ensuring that marketing activity conducted on Ms Klass’ social media accounts promotion Skechers was compliant with the CAP Code. The ASA considered that the inclusion of “@skechers_uk” was insufficient to ensure the posts were obviously identifiable as ads. The ASA welcomed the aasurances from Skechers and Ms Klass that they would ensure that similar posts would be clearly labelled. As at the time of the complaint the posts did not include any labels identifying them as marketing communications, the ASA held that they were not obviously identifiable and breached the CAP Code.

These rulings highlight that both the brand and the influencer and jointly responsible for ensuring that marketing activity is compliant with the CAP Code. An ASA ruling does not only affect relations between the influencer and brand but also the public’s perception of the brand as being trustworthy. At PromoVeritas our legal team can advise brands and agencies alike on all the rules and can offer influencer services from agreements to copy checking to training.  Find out more about our influencer services by contacting us here or calling +44 (0)203 325 6000.