Ad description
An Instagram story posted on Chloe Ferry's account @chloegshore1, seen on 6 June, featured the influencer using a hairstyler alongside the text, “Kyszer airwrap”, “Huge 70% offer for their UK launch. £49.99 instead of £164.99 for 24 hours only” and a link to the kyszer.com website. Additional text on the top-left corner of the post, obscured by the influencer’s profile picture, stated, “Ad”.
Issue
The complainant challenged whether the post was obviously recognisable as a marketing communication.Response
Next Wave Ventures Ltd t/a Kyszer did not respond to the ASA’s enquiries.
Chloe Ferry’s representative said that they understood that all advertisements for services should be identifiable. The ad was a pre-edited frame that had been supplied directly by Kyszer. When the frame was placed to upload it, there had been no indication that the “Ad” text would be obstructed in any way. They said they would liaise with the brand to ensure that the positioning of the “Ad” text was not obscured in the future.
Assessment
The ASA was concerned by Kyszer’s lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay). We reminded them of their responsibility to provide a response to our enquiries and told them to do so in the future.
Upheld
The ASA first assessed whether the post was a marketing communication that fell within the remit of the CAP Code. We understood that Chloe Ferry had a commercial relationship with Kyszer in which she had been paid to promote their products using her Instagram account. We therefore considered that posts made under that relationship fell within the remit of the CAP Code. We considered that Kyszer and Chloe Ferry were therefore jointly responsible for ensuring that marketing activity conducted on Chloe Ferry’s account which promoted Kyszer was compliant with the CAP Code.
We next considered whether the post was obviously identifiable as a marketing communication and whether it made its commercial intent clear. We noted that the text “Ad” was in the top-left corner of the post, but was obscured underneath Chloe Ferry’s profile picture and was therefore difficult to see and was likely to be overlooked by Instagram users who saw the post. We therefore considered that the “Ad” label was not sufficiently clear or prominent to make the ad obviously identifiable as a marketing communication.
Because the “Ad” label was not in a clear and prominent position within the post, we considered the ad was not obviously identifiable as a marketing communication, and therefore breached the Code.
The ad 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 ad must not appear again in the form complained about. We told Next Wave Ventures Ltd t/a Kyszer and Chloe Ferry to ensure their future posts were obviously identifiable as marketing communications, for example by ensuring that identifiers, such as “#ad”, were in a clear and prominent position and not obscured by other features. We referred the matter to CAP’s Compliance team.
