Ad description
Two Instagram posts and an Instagram Reel from Myleene Klass’ account:
a. The Instagram story, seen on 16 May 2022, featured an image of Myleene wearing a bra top and pink drawstring casual trousers with text which stated “@next official PINK TIE TROUSERS”.
b. The second post, seen during May 2022, featured an image of Myleene wearing a bikini at the beach. Text stated “#MyleeneKlassXNext @ nextofficial”.
c. The Instagram reel, also seen on 16 May 2022, featured Myleene wearing a floral printed dress and high-heeled sandals. Text above the image stated “My collection selling faster than that orange lambo” accompanied by a laughing face emoji. Text underneath stated “MYLEENE KLASS X NEXT @nextofficial”.
Issue
The complaint challenged whether ads (a), (b) and (c) were obviously identifiable as marketing communications.
Response
Next Retail Ltd t/a Next said they had entered into a manufacturing and endorsement agreement with a brand licensor and Myleene Klass was named in that agreement. Under the terms of the agreement, the brand licensor would work closely with Next to ensure new ideas, designs and prints were available for Next’s licensed products and the ranges were part of a collaboration between Next and Ms Klass. The agreement stipulated that Ms Klass should promote and endorse the Next brand by making positive references to the brand in interviews, public appearances and on social media and should make it clear in such communications that she had a commercial relationship with Next. She was also required to promote the collaboration generally through regular social media posts. The brand licensor was to ensure that Ms Klass complied with all applicable laws and regulations and codes of practice in connection with her activities in endorsing and promoting Next’s products. Next said Ms Klass received a royalty on sales of the licensed products.
Next said applying the dictionary definition to the words ‘obviously’ which meant easily perceived and understood, and ‘identifiable’, which meant able to be recognised, they believed that consumers would be able to easily recognise that Ms Klass was advertising her collaboration with them. Next said there was a number of posts which referred to the collaboration and they all involved modelling clothing which indicated that they were marketing communications.
Next said they had no involvement in the content of the posts which were the subject of the complaint. However, they noted that “@nextofficial” was clearly marked on her page and on the three Instagram posts. Additionally, they said in each post, Ms Klass referenced the product she was wearing and that in one of the posts it said “Myleene Klass X Next” and “my collection”. They believed it would be obvious to consumers from the context of the posts and the repeated references to Ms Klass’ collaboration with Next, including mentioning their company name and the use of her name in the clothing line, that Ms Klass had a commercial relationship with Next. They said it would be evident to a reasonable person who accessed Ms Klass’ account that her posts, images and captions were marketing communications and they believed the commercial intent was clear across her handles, hashtags and captions.
Next also said that at the time the posts were seen there was increased media interest in Ms Klass and it was widely reported in the mainstream media that Ms Klass had a collaboration with Next so it was well known that she had a commercial relationship with Next. They therefore believed it would be understood by those who saw the posts that Ms Klass was promoting her collection with Next and that anyone who chose to look for Ms Klass would be aware of her interests, links and associations. Next referred to CAP online guidance which they understood to mean that where it was immediately clear that an influencer was posting about their own products, or those they had collaborated in the creation of, in those cases a prominent label such as “#ad” was not necessary. They believed that was the case in this instance.
However, Next said that in order to ensure that social media posts made by their collaborators met best practice and to remove any doubt that a commercial relationship existed, they had contacted Ms Klass’ agent and suggested that all posts related to her collaboration with Next or their products, should be clearly marked as a marketing communication, such as through the use of “#Ad”. They understood the changes were promptly made to the Instagram posts.
Myleene Klass’ representatives said there was some confusion as to what was and was not an ad, but she had added “Ad” to all her posts moving forward and would continue to do so.
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 there was a commercial relationship between Myleene Klass, Next and a brand licensor under which Ms Klass would promote and endorse on various social media platforms the Next products she had collaborated on and that she would receive a royalty payment on the sales of the products she promoted. We considered that those aspects of the agreement between Next and Ms Klass established that Next had sufficient control over the content of social media posts, in conjunction with a payment arrangement, for them to be considered marketing communications falling within the remit of the CAP Code. We therefore considered that the posts would need to be obviously identifiable as such, and that Next and Ms Klass were jointly responsible for ensuring that such promotional activity complied with the Code.
All the posts stated “@nextofficial” and ads (b) and (c) included additional text which stated “#MyleeneKlassXNext”. We considered those statements would be understood by consumers to mean that clothing sold by Next was being featured and identified the wearer as Ms Klass. We did not consider that those statements fully explained the nature of Ms Klass’ relationship with Next or made clear that there was a commercial relationship between them.
We noted that the post caption in ad (c) stated “My collection selling faster than that orange lambo” and we acknowledged Next’s assertion that their collaboration with Ms Klass had been widely reported in the media and that it would be well known to viewers of the posts that she was promoting her collection with them. However, we considered that the posts could have been viewed in isolation, that not all Instagram users would be aware of the pre-existing relationship between Next and Ms Klass and that she was engaging in promotional activity for them. We also considered the reference to “my collection” was insufficient to make clear that there was a commercial arrangement between them, whereby Ms Klass would receive royalty payments on sales of the products featured and that the posts were in fact ads.
We noted that Ms Klass said she would amend her posts going forward to include the identifier “ad”, but because at the time of the complaint the posts did not include such a clear and prominent identifier, we considered that they were not obviously identifiable as marketing communications and therefore concluded that the ads breached the Code.
Ads (a), (b) and (c) breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. 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. and 2.4 2.4 Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature". (Recognition of marketing communications).
Action
The ads must not appear again the forms complained of. We told Next Retail Ltd t/a Next and Myleene Klass to ensure that she made clear the commercial intent of her posts in future and that her ads were obviously identifiable as marketing communications, for example, by including a clear identifier such as “#ad”.
