Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Three posts and an Instagram story post for Calzedonia, Bvlgari, and BOL Foods on Emma Louise Connolly's Instagram account, seen in June 2021:
a. The first post, for Calzedonia, featured an image of Emma Louise Connolly wearing a blue swimsuit with a caption that stated “The @calzedonia blues! #CalzedoniaAmbassador”.
b. The story post, for Calzedonia, featured an image of Emma Louise Connolly in a black swimsuit with superimposed text in small, white writing on a light grey background that stated “@calzedonia AD”.
c. The second post, for Bvlgari, featured an image of Emma Louise Connolly wearing a necklace with 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”.
d. The third post, for food manufacturer BOL Foods, featured an image of Emma Louise Connolly eating spaghetti with a caption that stated “sippin [(sic)] on some @bolfoods posh noods swipe for our full new #powerFULL range of plant based goodness that all taste SO good”.
Issue
The ASA received two complaints:
1. Both complainants challenged whether the posts in ads (a) (b) and (c) were obviously identifiable as marketing communications.
2. One complainant challenged whether ad (d) had made clear its commercial intent.
Response
1. Emma Louise Connolly’s agent said that ad (a) was not posted as part of any paid work by Ms Connolly for Calzedonia, and that they thought the label on ad (b) was clear and prominent. However, they said that they would ensure future, similar posts, featured clearer and more prominent labels.
Ms Connolly’s agent said she had now updated ad (c) to include the label “#AD”.
Calzedonia (UK) Ltd said that they had maintained a brand ambassador relationship with Ms Connolly since 2018. They said that they had recently entered into an Ambassador Agreement with ECL Modelling Ltd, a company under the sole directorship of Ms Connolly. Under the Agreement, for which Ms Connolly was remunerated, all posts had to be labelled as advertising and pre-approved by Calzedonia, to ensure compliance with consumer protection regulations and the CAP Code.
Calzedonia explained that the Agreement contained express obligations in regard to compliance with the CAP Code.
Calzedonia said that ad (a) had been made outside of that pre-approval process. They had asked Ms Connolly to include the label “#Ad”, but had not been able to ensure that happened. They said that following the ASA’s contact, the post had been updated to include the label “#AD”.
Calzedonia said that the position of the label in ad (b) would have made it difficult to miss, since the post was uncrowded, and so was obviously identifiable as a marketing communication.
Bvlgari (UK) Ltd provided a copy of the contract that governed their relationship with Ms Connolly.
2. Ms Connolly’s agent said that she was an investor in BOL Foods and was not required to post about the brand under any agreement with them. Ms Connolly had announced her position as an investor in the company to her followers, both through Instagram story posts, and posts on her Instagram account. They said that BOL Foods had constructed a label for Ms Connolly to use on posts about their brand, “#team BOL”, and that she would announce that to her followers, explaining the meaning of the label, and use it in future posts about the brand.
Powder Bowl Trading Ltd t/a BOL Foods said that Ms Connolly was an investor in their company and had previously used the label “#businesspartners”; as such they did not feel it was necessary to include the label “#AD”. They said they would ensure Ms Connolly used the label “#teamBOL” in the future.
Assessment
The CAP Code stated that marketing communications must be obviously identifiable as such, and that they must make clear their commercial intent if that was not obvious from the context.
1. Upheld
The ASA understood that Ms Connolly had a commercial relationship with Calzedonia as a brand ambassador and that posts made under that relationship fell within the remit of the CAP Code. We considered that they were therefore jointly responsible for ensuring that promotional activity conducted on Ms Connolly’s account promoting Calzedonia was compliant with the CAP Code.We noted that ad (a) had been made outside of the Ambassador Agreement Ms Connolly had with Calzedonia. Although we acknowledged that Ms Connolly and Calzedonia’s comments that ad (a) was not paid for, we noted the post featured the same hashtag as other posts that were part of that agreement – “#CalzedoniaAmbassador”. We noted Calzedonia’s comments that they had suggested Ms Connolly add the label “#Ad” to the post before publishing it on her Instagram account. While we understood that Ms Connolly had not been directly paid for ad (a), because it was linked to her Ambassador Agreement with Calzedonia, we considered the post was an ad for the purposes of the Code and so should have been obviously identifiable as such, for example through the use of the label “#AD”. We welcomed Calzedonia’s assurance that ad (a) had been updated to include the label “#AD”.We noted that ad (b) featured the label “AD”. However, that label appeared in small white writing on a light grey background. We considered that presentation meant the label was unclear and lacking in prominence, since it blended into the background and was obscured as a result. We considered the label would have been significantly more prominent if it had been written in a colour, or had been placed inside a box, that contrasted with the background.
We understood that Ms Connolly had a commercial relationship with Bvlgari and that posts made under that relationship fell within the remit of the CAP Code. We considered that they were therefore jointly responsible for ensuring that promotional activity conducted on Ms Connolly’s account promoting Bvlgari was compliant with the CAP Code. We welcomed Ms Connolly’s assurance that ad (c) had been updated to include the label “#AD”. However, at the time it was made the post had not featured any label identifying it as a marketing communication.
We welcomed Calzedonia and Ms Connolly’s assurances that ads (a) and (c) had been updated to include the label “#AD”. However, in the absence of clear and prominent identifiers at the time ads (a), (b) and (c) were made, we concluded they were not obviously identifiable as marketing communications and as such breached the Code.
On that point, ads (a), (b) and (c) breached CAP Code (Edition 12) rule 2.1 2.1 Marketing communications must be obviously identifiable as such. (Recognition of marketing communications).
2. Upheld
We understood that Ms Connolly was an investor in Powder Bowl Trading Ltd and therefore had a commercial relationship with the brand. We also understood that the post fell within the remit of the CAP Code. The ad included an exhortation to consumers to purchase from two national supermarkets that were tagged in the post caption.
We next considered whether the post was obviously identifiable as a marketing communication and made clear its commercial intent. We considered that although some of Ms Connolly’s followers might have known that she was an investor in BOL Foods, it was not immediately clear to all followers that she had a commercial interest in the company from the post itself. We noted that the post did not feature a label such as “#AD” identifying it to consumers as a marketing communication.
We noted BOL Food’s assurance that Ms Connolly’s future posts about their brand would be labelled “#teamBOL”, and that Ms Connolly would create and post a video to Instagram explaining the meaning of the label to her followers. However, we considered that label and explanatory video would still not make clear the commercial intent behind Ms Connolly’s posts, and would not make them obviously identifiable as marketing communications.
We concluded that the commercial intent behind the post was not made clear upfront and was not obviously identifiable as a marketing communication, and therefore breached the Code.
On that point, ad (d) breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of marketing communications).
Action
The posts must not appear again in the form complained about. We told Emma Louise Connolly, Calzedonia (UK) Ltd, Bvlgari (UK) Ltd and Powder Bowl Trading Ltd to ensure that they made clear the commercial intent of their posts in future, and to ensure that their future ads were obviously identifiable as marketing communications, and that identifiers such as “#ad” were clearly and prominently displayed.
