ASA Rulings Recap February 2021
This month the ASA rulings focused heavily on influencer marketing and the use of filters.
Boohoo.com UK Ltd in association with Luke Mabbott
Luke Mabbott posted a video on his TikTok account
wearing two outfits. The caption stated: “Which look do you prefer”
and “Outfit from @boohooman #boohooman”.
Whether the post was a marketing communication or
advert without being identifiable as such.
Boohoo responded by stating that they had a
contractual relationship with Luke Mabbott which include an obligation on him to ensure that all social media posts were identifiable as Ads. The influencer was reminded of this obligation. He indicated that it was an oversight on his part for failing to disclose that the post was an Ad.
UPHELD – As there was a commercial relationship between Boohoo and Luke Abbott involving a contractual agreement which covered
the social media post, the ASA held that the post fell within the ambit of the CAP Code. Both Boohoo as well as Luke Abbott were responsible for ensuring that the social media post was compliant with the CAP Code. As there was no mention of the word Ad or Advert in the post, the ASA held
that the post was in breach of its Code as it was not obviously identifiable as an Ad.
CAP Code – 2.1, 2.3 and 2.4 – Recognition of Marketing Communications.
Lessons to be learnt:
Both the Brand as well as the Influencer are jointly responsible for ensuring that promotional activities conducted by the Influencer are compliant with the CAP Code, and must always feature #Ad, or #Advert or Paid Sponsorship.
Skinny Tan Ltd in association with Elly Norris
Two reposted Instagram stories by Elly Norris on Skinny Tan,
seen in July 2020.
The complainant challenged
whether the ads were misleading as they believed the Instagram filter used exaggerated the ability of the advertised product.
Skinny Tan had reposted photos created by Elly Norris to their Instagram profile as she had been complimentary about their product. They alleged not to have a commercial relationship with Norris and did not endorse or encourage the use of filters to exaggerate.
Ms Norris however stated that Skinny Tan had sent the product to her as a form of collaboration, but no payment was received and there was no contractual obligation for her to share the product on her socials. She was not aware of the implications of using filters and her intention was not to mislead. The filter used on her photos was “Perfect Tan” by Bianca Petry.
UPHELD – Because the posts were reposted by Skinny Tan on their brand account and incorporated into their own marketing, they fell within the ambit of the CAP Code. The original post by Elly Norris included the ‘paid partnership’ tag and #ad and #gifted appeared in the comments. The ASA held that the images posted in conjunction with the comments made meant that applying the product would result in a darker complexion and considered that consumers would expect to experience similar results to Ms Norris’ appearance in the ads. Furthermore, the application of the filter “Perfect Tan” to the images gave a misleading impression about the product and concluded that the ads misleadingly exaggerated the results the product could achieve and breached the Code.
3.1 – Misleading advertising and 3.11 – Exaggeration.
Lessons to be learnt:
BOTH the brand as well as the influencer will be held liable for breaches of the CAP Code. If the influencer is under no obligation to post but the brand still chooses to repost to their channels; THIS FALLS WITHIN THE CAP CODE! Brands must be cautious when using influencer content which has not been approved by them as it may contain the use of filters which may exaggerate or distort their product. This will result in a violation under the CAP Code.
Tanologist Tan in association with Cinzia Baylis Zullo
An Instagram story by influencer Cinzia Baylis-Zullo @cinziabayliszullo, promoting We Are Luxe t/a Tanologist Tan, included a video of her applying the product using the “Yourbeauty by giorgiopivaa_” filter.
The Complainant challenged whether the Ad was misleading as they believed that the Instagram filter used exaggerated the efficacy of the advertised product.
We Are Luxe Ltd said the video was a demonstration of how to apply their product and it did not describe the products efficacy. Ms Zullo responded that the filter used in the ad changed her appearance by adding freckles, but that the video was intended to explain how to use the product, not to demonstrate how it looked, and the use of the filter was therefore not misleading. We Are Lux Ltd removed the ad and said that it would not be used again.
UPHELD –– The ASA considered tha t consumers were likely to understand from the product name “Tanologist Tan” and the claims made by the Influencer “I wanted to tell you all about how I’ve been tanning my face recently using this Tanologist face and body drops”, “…usually I go to sleep and wake up with a beautiful glow” and “ They’re really good because they’ve not been breaking me out at all. My skin has been pretty good while I’ve been using them and they’re dermatologically approved so that’s fantastic, it’s why we’re not breaking out” to mean that Ms Zullo had been using the product for some time and that her appearance was reflective of that.
This impression was emphasised by her smoothed and tanned complexion. They therefore considered that consumers would expect to experience similar results to Ms Zullo’s appearance in the video. The ASA understood that the filter used resulted in a slightly darker skin tone , with added freckles, and smoother complexion. The filter’s effects were therefore directly relevant to the intended effects of the product . The application of the filter to the video was directly relevant to the claimed performance of the product and gave a misleading impression about the performance capabilities of the product.
The ASA concluded that the ad misleadingly exaggerated the results the product could achieve.
3.1 Misleading advertising and 3.11 Exaggeration.
Lessons to be learnt:
Where possible, Influencer posts must be approved by the brand before posting, and in certain instances should avoid the use of filters all together.