ASA Rulings Recap August 2021
Emily Vickers, Paralegal at PromoVeritas takes a look at the some recent ASA Rulings noting that following the recent introduction of the ASA’s influencer watchlist, a quarter of this month’s upheld rulings were social media influencers breaking the rules.
A post on Lauren Goodger’s Instagram account promoting @hannahd.fx, a forex trader, which featured a screenshot of a WhatsApp conversation which stated ‘£1730 profits in the last 2 days’ and said that she ‘has been consistently profitable’
The ASA received 3 complaints about this ad; whether the post was clearly identifiable as marketing communication, whether the claims ‘£1730 profits in the last 2 days’ and ‘has been consistently profitable’ were misleading and could be substantiated.
The person ‘@hannahd.fx’ said they would ensure that their future marketing communications did not breach the CAP Code. Lauren Goodger said that she had been sent a script by @hannahd.fx and that they dictated the contents of the post’s caption and that she had been remunerated for the post. Lauren Goodger did confirm that she would ensure that her future marketing communications featured ‘prominent identifiers’.
Photo credit: BigBrotherJunkie89
UPHELD – All 3 complaints were upheld. They highlighted the fact that the CAP Code states that marketing communications must be obviously identifiable as such, and as Lauren Goodger was promoting @hannahd.fx and should therefore have used #ad or another prominent identifier. Regarding the two claims, the ASA felt that consumers would believe they could achieve similar levels of consistent profit. Moreover, because the ASA had not seen any evidence in support of the claims, they concluded that they were misleading.
CAP Code – 2.1 – recognition of marketing communications – 3.1 – misleading advertising, 3.7 – substantiation.
Lessons to be learnt:
As always, any influencers that produce any promotions for brands need to include a prominent identifier in their posts, the easiest being #ad. Furthermore, any claims made NEED to be supported by evidence.
Briley Powell ran a promotion on her Instagram page, with the caption stating ‘WIN £250 TO SPEND ON PRETTY LITTLE THING + THIS BUNDLE … includes £250 PLT Voucher Filter by Molly-Mae FULL tanning kit Beauty Works Professional Style The White Company Seychelles Set … TO WIN: Like this post Tag your bestie Share to your story (tag me) Both must be following @brileypowell Unlimited entries!’
One complainant came forward. They had been notified that they had won the prize draw but had not received any prizes and so challenged whether the promotion breached the CAP Code.
Briley Powell said that all items except for the £250 PLT voucher had been posted to the winner, but that she did not have any tracking information for the packages. She also said she decided to delay sending the voucher after being contacted by the winner who said that they had not received the prizes that had already been sent. She said she reviewed their competition entry and found out that the winner had breached the entry requirements of the competition as the winner had not been following @brileypowell’s account. She also said that the winner had used spam accounts to find and participate in giveaways and so withheld the voucher.
UPHELD – the CAP Code states that promoters are required to award the prizes described in their marketing communications, normally within 30 days. In this case, the complainant was selected as the winner on the 14 February 2021 but had still not received the prizes. As the ad didn’t specify a date by which the prizes would be awarded the ASA expected that they should have been awarded within 30 days of the closing date of the promotion.
The ASA acknowledged the fact that Briley Powell said 3 out of the 4 prizes had been posted but considered that Briley Powell should have paid for tracking for the prizes or other similar means to prove that the prizes had in fact been sent. Briley Powell in her defence stated that the PLT voucher had been withheld as the winner had not satisfied all requirements of the prize draw. However Briley Powell was unable to answer why the winner had been chosen in the first place if they had not complied with the entry requirements. As there was no requirement to continue following the social media account following the end of the promotion, the winner could have simply stopped following Briley Powell after the closing date. The ASA believed that Briley Powell had not demonstrated that the winner had not complied with the promotion entry requirements and that there was a justifiable reason for withholding the prizes.
The ASA concluded that the promotion was in breach of the CAP Code as Briley Powell could not provide evidence that three of the prizes had been sent, and that withholding the prize was not justified.
8.1 & 8.2 – promotional marketing, 8.15.1 – administration, 8.27 – prize promotions.
Lessons to be learnt:
When running prize promotions, influencers need to be fully aware of what is involved. Promotions similar to this are being run daily on social media and will continued to be challenged. It is imperative that influencers follow the rules of the CAP Code and run fair promotions, ensuring that rules are stated clearly in the terms and that prizes are awarded.
Three posts and an Instagram story by Emma Louise Connolly for various brands;
- A post for Calzeondia featuring an image of Emma Louise Connolly and a caption ‘The @calzedonia blues #CalzedoniaAmbassador’
- An Instagram story post for Calzedonia, also featuring an image of Emma Louise Connolly in a black swimsuit with superimposed text in small, white writing on a light grey background stating ‘@calzedonia AD’
- A post for Bvlgari featuring an image of Emma Louise Connolly accompanied by a caption that stated ‘@bulgari. Honestly, what an honour to be part of the new #BvlgariMagnifica campaign. Nothing but love for the magnificent team behind it … #Bvlgari #BvlgariHighJewelry’
- A post for BOL Foods featuring an image of Emma Louise Connolly eating spaghetti with the caption ‘sippin [(sic)] on some @bolfoods posh noods swipe for our full new #powerFULL range of plant based goodness that all taste SO good’.
Two complaints were made to the ASA. Both challenged whether the first three posts were identifiable as marketing communications and one complainant challenged whether the final post had made clear its commercial intent.
The first Post: Emma Louise Connolly’s agent said that the first post was not part of any paid work by her for Calzedonia. They said that they thought the label on the second post was clear and prominent but confirmed that they would ensure any posts in the future of a similar nature contained clearer and more prominent labels. Calzedonia said that with regards to the first post, this had been made outside of their pre-approval processes, but they had asked her to include #ad but hadn’t been able to ensure that it happened, they did say it had now been updated.
The second post: they maintained that as the post was uncrowded, and the placement of the label made it difficult to miss and so the post was easily identifiable as marketing communications.
The third post the agent said this had now been updated to include #ad and Bvlgari provided a copy of the contract that governed their relationship.
The final post, her agent confirmed that she was an investor in BOL Foods and was not required to post about the brand under any agreement with them. Emma Louise Connolly had made her position as an investor aware to her followers through numerous posts on her Instagram account and story. She said they BOL Foods had constructed the label #teamBOL to use on any posts. BOL Foods confirmed that she was an investor and had previously used #businesspartners and therefore did not feel it was necessary to include #AD. They said they would ensure ELC used #teamBOL in the future.
UPHELD – The first post should have included #Ad, as even though she had not been directly paid for the post, as it was linked to her Ambassador Agreement with Calzedonia the post was an ad for the purposes of the CAP Code and should therefore have been obviously identifiable as such.
The second post, the ASA acknowledged the fact that the post did include AD, it was in small white writing on a light grey background, meaning that it was unclear and lacking in prominence.
The third post, ELC has a commercial relationship with Bvlgari and so posts made under that relationship falls under the CAP Code, and so both parties are responsible for ensuring that any promotional activity is compliant with the CAP Code. Whilst the ASA noted the update to the posts to include #AD, as this was not in place at the time the ads were published, the ASA concluded that they were not easily identifiable as marketing communications and therefore breached the Code.
The complaint regarding the commercial intent of the post was also upheld. The commercial intent was not made clear upfront and was not obviously identifiable as a marketing communication and therefore breached the Code. Some of Emma Louise Connolly followers may be aware that she is an investor in BOL Foods, it was not immediately clear to all followers. BOL Foods promised that any future posts would be labelled #teamBOL and that ELC would post a video explaining the meaning of the hashtag, but the ASA still considered that this would still not make clear the commercial intent of the posts and would not make them obviously identifiable as marketing communications.
CAP Code – 2.1 & 2.3 – recognition of marketing communications.
Lessons to be learnt:
Both the brand and the influencer are jointly responsible for ensuring that promotional activities carried out by the influencer are compliant with the CAP Code, and must be obviously identifiable as such, via the use of #AD or #Advert.