Background
This case forms part of a wider piece of work on ads for affiliate marketing using intermediaries, identified for investigation following intelligence gathered by the ASA.
Ad description
An Instagram story on Tanya Burr’s account, @tanyaburr, posted on 8 April 2024, featured Ms Burr taking a selfie in front of a mirror wearing a trench coat and Adidas trainers. Text on the photo stated, “I lived in this trench last Autumn and am very happy to be back in it for Spring”. Below the text, a clickable link labelled “OUTFIT LINKS” directed to Ms Burr’s LTK shop page.
Issue
The ASA challenged whether the story was obviously identifiable as a marketing communication.
Response
Adidas UK Ltd t/a Adidas said that they had not contracted Ms Burr, and had not previously worked on any paid campaigns with her. They confirmed that Ms Burr used an affiliate link on Adidas products that had originated from their affiliate network AWIN. They said that they always required their creators to disclose paid content when they were included in their paid campaigns.
Braveheart International Ltd t/a ALIGNE, who sold the trench coat featured in the ad, said that when they entered into paid partnerships, they set out specific guidelines to ensure that the word “AD” was clearly visible. They said that they did not have a paid partnership with Tanya Burr, and confirmed that they agreed to gift her the coat in October 2023 at her own request. They said that they did not directly authorise the link to their site via the affiliate platform LTK, and instead worked with AWIN as one of their affiliate platforms, through which they had accepted LTK as a partner platform. They did not pay or have a contract with LTK. Instead, AWIN held the funds content creators generated through a 30-day period, and released them to LTK. They said that they did not have visibility on LTK regarding who added links to their site, and where the commission had originated from. They said that the only information they had through LTK was traffic that came from Shop LTK to their Shopify site. They had not observed a spike in sales in the 7 days following Ms Burr’s post.
Ms Burr said that she would take immediate steps to amend her advertising in line with the ASA rules. She stated that she was not paid by Adidas or ALIGNE, and did not have any contractual agreements in place with either brand. She confirmed that she had purchased the Adidas trainers herself and was gifted the ALIGNE trench coat in October 2023. rewardStyle Inc t/a LTK said that they were a tech-enabled partner for creator guided shopping. They provided the technology that allowed influencers (creators) to create shoppable posts that drove trackable sales for brands. They noted that they were not the advertiser, nor the creator, and instead they provided the platform for which brands and creators could connect their products. The core service they offered was to allow creators to host “shops” on the platform. Through their shoppable LTK links, creators could be compensated for their posts, and brands could track and grow engagement and sales. They said that they took compliance with advertising regulations seriously and had policies in place that required the creators to adhere to all relevant legal and ethical standards. They required creators to include disclosures in their social media posts. They also included marketing disclosures next to the affiliate links on their platform. They highlighted that they had thousands of creators, and it was not possible for them to read every post. However, they did monitor their platform, and in cases of non-compliance, they would take action. In relation to the story, they agreed that it should have included disclosure in compliance with their guidelines and contractual requirements.
AWIN Ltd said that they operated as an affiliate marketing platform that connected advertisers and publishers (such as influencers) and provided the technology to track transactions that resulted from publisher referrals to the advertiser’s products. They had contractual agreements in place with advertisers and publishers that required them to act in compliance with relevant laws and regulations. They also offered advertisers and publishers tools such as a universal customisable disclosure solution for their links, called “admission” which allowed publishers to customise the disclosure text they wanted to display.
Assessment
Upheld
The CAP Code stated that marketing communications must be obviously identifiable as such, and they must make clear their commercial intent if that was not obvious from the context.The ASA first assessed whether the Instagram story was an ad. We understood that Ms Burr had purchased the Adidas trainers herself. We further understood that she was gifted the ALIGNE coat, though in the absence of a contractual agreement with the brand, we considered that there was no editorial control over the story. However, the story included an affiliate link that directed to Ms Burr’s LTK shop page, which would earn Ms Burr commission when products were purchased through the links on the platform. The story was therefore a marketing communication for the purposes of the Code.
We then assessed whether the ad was obviously identifiable as such. The ad was an Instagram story which featured a photo of Ms Burr taking a selfie with the text “I lived in this trench last Autumn and am very happy to be back in it for Spring”, together with a link labelled “OUTFIT LINKS”. We considered that consumers would understand the ad to be Ms Burr sharing with her followers a recommendation of a coat she wore frequently. We acknowledged that once consumers landed on Ms Burr’s LTK shop page, built-in text on the platform stated “Paid links”. However, this was only visible to consumers after they had engaged with the link.Because consumers therefore had to engage with the ad before it was made clear that Ms Burr would receive commission on purchases made via the links featured, we considered that this was insufficient to ensure that the story was obviously identifiable as an ad. We concluded that in the absence of a clear and prominent identifier, such as “ad”, the ad did not make its commercial intent clear from the outset and was not obviously identifiable as a marketing communication.
The ad breached CAP Code (Edition 12) rules 2.1, 2.3 and 2.4 (Recognition of marketing communications).
Action
The ads must not appear again in the form investigated. We told Adidas UK Ltd t/a Adidas, Braveheart International Ltd t/a ALIGNE, and Ms Burr to ensure that their future ads were obviously identifiable as marketing communications, that the commercial intent was made clear, and that identifiers such as “ad” were clearly and prominently displayed.
