Ad description
Two Instagram posts and an Instagram story on influencer Chessie King’s Instagram account, for the fashion retailer Never Fully Dressed, seen in June 2022:
a. The first Instagram post featured an image of Ms King in a wedding dress. Text superimposed at the top of the image stated, “never fully dressed WEDIT”. The posts caption stated, “introducing the ultimate dream, collection meet our WEDIT @neverfullydressed [diamond ring emoji] [bride emoji] [chapel emoji] available to order the day after the wedding 22.06.22”.
b. The second Instagram post featured an image of two women walking on a lawn wearing party dresses. Text superimposed over the image stated, “never fully dressed WEDIT”. The post’s caption stated, “I bought my first @neverfullydressed piece in 2016, their iconic leopard print wrap skirt & now we’ve created this together… wow oh wow. With styles going from size 6-24, I adore the golds, the oranges, the silks, the sequins & the goddesses wearing them. It’s with no surprise that bridesmaids very nearly sold out all their stunning sparkly dresses, there’s only a few left. See the full collection at www.neverfullydressed.co.uk or clicking the link in my bio [chapel emoji] [bride emoji]”.
c. The Instagram story featured an image of Ms King in a wedding dress. Text superimposed at the top of the image stated, “[chapel emoji] launching 22.06.22”. Further text superimposed at the side of the image stated, “@neverfullydressed”.
Issue
Two complainants challenged whether the posts were obviously identifiable as marketing communications.
Response
Never Fully Dressed Ltd said that they worked with influencers to ensure their marketing communications abided by the CAP Code, and followed ASA guidelines. They said that they included provisions into their terms of engagement requiring all influencers they worked with to be transparent in their social media posts. They said they usually required influencers they worked with to use disclosures such as “#ad” at the beginning of their posts.
Never Fully Dressed confirmed that they and Chessie King had been engaged in a commercial relationship since 8 June 2022, and that Ms King had collaborated on the design of a wedding outfit collection. They confirmed that Ms King had designed a number of items of clothing for her wedding guests to wear under the name “WEDIT”. They also confirmed that the Instagram posts were published around the time of the launch of the “WEDIT” collection, and did not contain the word “ad”.
However, they said they believed the posts were clearly identifiable as a collaboration between Never Fully Dressed and Ms King and did not falsely claim or imply that Ms King was acting as a consumer. They also said they believed that the commercial intent of the posts was clear.
Never Fully Dressed believed that the wording of the post from 17 June – “our ‘WEDIT’ @neverfullydressed” – immediately made it clear that there was a commercial relationship between Never Fully Dressed and Ms King. They said that the wording of the post from 26 June – that the collection was one that “we’ve created together” – also made the commercial relationship clear. They therefore believed that they could not be said to be portraying Ms King as acting as a consumer. They said that because the posts related to an ongoing design collaboration between themselves and Ms King, rather than a straightforward paid promotion post, they believed that the posts did not need to contain the “#ad” marking that would be expected in other circumstances.
Representatives of Ms King also confirmed the commercial relationship between her and Never fully Dressed, and confirmed that the posts had not contained the relevant disclosures to identify them as marketing communications. Ms King apologised for the lack of ad disclosure, noting that it was due to human error during the busy and pressured period of her wedding.
Ms King’s representatives said that they were committed to taking steps to ensure full compliance with the CAP Code, that their Legal and Business Affairs department had set out clear internal guidelines on social media advertising, and that Ms King had been provided with further guidance and training regarding the disclosure of marketing communications, in order to prevent such oversights from reoccurring. They also said that the posts relating to the complaint which were still visible had been updated to display the appropriate disclaimers.
Assessment
Upheld
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.
The ASA understood that there was a financial agreement between Never Fully Dressed and Ms King which involved a contractual agreement that covered the posts under investigation and that, as part of that agreement, Ms King was provided with a brief detailing the content, format and number of social media posts relating to their collaboration. We therefore understood that the relevant posts fell within the remit of the CAP Code, and that both parties were jointly responsible for ensuring that promotional activity conducted by Ms King on behalf of Never Fully Dressed was compliant with the CAP Code. The posts were therefore required to be obviously identifiable as marketing communications.
We understood that Ms King’s “WEDIT” referred to her curation of a range of items available on the Never Fully Dressed website. We acknowledged Never Fully Dressed’s assertion that the language used in the posts, such as “our ‘WEDIT’”, and “we’ve created together”, meant that followers of Ms King’s Instagram account were likely to understand that the posts were marketing communications. However, we understood that, because Ms King’s profile was visible to the public, any posts she published could appear in search results and those posts could be viewed in isolation from her profile. That meant Instagram users who were not followers of Ms King’s profile would be able to view the post.
While the posts contained some elements that indicated there might be a commercial relationship between Ms King and Never Fully Dressed, we considered that the language used was not sufficiently clear to ensure that the posts were obviously identifiable as ads. We also did not consider that the tagging the posts with “@neverfullydressed” amounted to a clear acknowledgment of the commercial relationship between Ms King and Never Fully Dressed, which would be immediately understandable to a consumer.
We welcomed the assurance that Ms King had amended the posts which were still visible to include the identifier “#ad”. However, because the posts did not include such an identifier at the time of the complaint, we considered that they were not obviously identifiable as marketing communications and therefore concluded that they breached the Code.
The ads 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 ads must not appear again in the form complained about. We told Never Fully Dressed Ltd and Chessie King to ensure that in future their ads were obviously identifiable as marketing communications and made clear their commercial intent, for example, by including a clear and prominent identifier such as “#ad”.
