Ad description
An Instagram reel on Lydia Millen’s account @lydiamillen, posted on 8 April 2024, featured Ms Millen trying on different clothing items to prepare for a flight.
In the video, she stated, “So, you know my ivory jeans that I’ve not been able to take off for the past two weeks? Well, they come in green too” while holding up the jeans at the camera, with the REISS label visible. Ms Millen then followed, “And you know, when I found a silk Theory top to match the jeans, I literally lost it […]”. The caption stated “One for the Evergreen girlies [plant emoji]”.
At the time the reel was posted, Ms Millen also shared two Instagram stories containing affiliate rStyle.me links to the product pages of the Reiss and Theory items featured in the reel.
Issue
The complainant, who understood that the reel was posted together with Instagram stories containing affiliate links to the items featured in the video, challenged whether the reel was identifiable as a marketing communication.
Response
Reiss Ltd t/a Reiss stated that Ms Millen was not an influencer they directly worked with. They used Partnerize as their affiliate partner, which could mean that Ms Millen had used an affiliate link through Partnerize for the stories that accompanied the reel. Partnerize was a technology provider to Reiss, that facilitated transaction tracking for Reiss’ online advertising. They stated that they did not have visibility of which influencers were linking to their products through Partnerize, and therefore driving traffic or sales to them, as they did not directly work with those influencers. They said that when they did work with influencers directly, they had a team that ensured the influencers tagged their content appropriately, as outlined in their contracts with them.
Link Theory (UK) Ltd t/a Theory said that the reel was organic content uploaded by Ms Millen, without being paid for or managed by Theory. They had previously worked with Ms Millen in May 2022, with a contract in place which required her to disclose that content was advertising. They also confirmed that they gifted Ms Millen three items in April and May 2024. The items featured in the reel were not gifted to her, and they were not involved in the making of the reel.
Ms Millen said that she had bought the Reiss and Theory items shown in the reel and provided receipts for the purchases. She stated that at the time the reel was posted, there were no commercial relationships in place with either brand. She confirmed that she had worked with both brands previously, with her collaboration with Reiss having taken place in June 2023. Regarding the stories that contained affiliate links for the items shown in the reels, she noted that they did include an ad identifier. While there were no mentions or hashtags referring to either brand on the reel, she had included tags for all brands featured in the reel, to help her audience identify the brands and pre-empt queries.
rewardStyle Inc t/a LTK, the technology partner hosting the affiliate links, said that they provided technology to influencers to create shoppable social media posts that could track sales for brands. They took a number of steps designed to ensure ads that used affiliate rStyle.me links were obviously identifiable as such. They required creators to agree by contract to include ad disclosures in their social media posts. They further provided creators with educational resources, including detailed guidelines and instructions for engaging with marketing campaigns on their platform.
Regarding the reel in question, they believed the reel was promotional content for Ms Millen’s newly released book “Evergreen”. They stated that several comments under the reel sought information on the brand names of the items mentioned in the reel, but Ms Millen did not appear to have responded to these comments, nor had she included rStyle.me (affiliate) links on the reel. In contrast, the stories that did include rStyle.me links were labelled with “Ad”. They believed Ms Millen had treated the reel as a separate piece of content from the stories. In their view, it did not appear that the reel was intended to be an ad, or that Ms Millen was compensated for that content.
Performance Horizon Group Ltd t/a Partnerize said that they provided a tracking solution for Reiss’ performance marketing, which enabled payments to be made to the appropriate partner in accordance with the terms of Reiss’ campaigns. They said that the campaigns themselves were not created or managed by Partnerize; they were not involved with the content or placement of ads, nor with the choice of which influencers were involved. It was their understanding that brands worked with third parties who recruited and managed influencers.
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. In cases of affiliate marketing, both the brand and the affiliate marketer were responsible under the Code, notwithstanding the fact that the ads may have been created solely by the affiliate without any input from the business themselves.
The ASA first assessed whether the Instagram reel was an ad for the purposes of the Code. It was posted at the same time as two Instagram stories which contained affiliate links to the items featured in the reel. We acknowledged that Ms Millen had purchased the featured items herself, and the brands Reiss and Theory had not provided payment for the reel or the stories. Instead, the affiliate links in the stories would earn Ms Millen commission when purchases were made through them and were therefore marketing communications. We considered the stories were clearly and prominently labelled as ads.
The reel was posted on the same day as the story ads, featured the same items for which there were affiliate links in the stories, and had the same cover photo as the stories. For those reasons, we considered that all three posts were connected to Ms Millen’s affiliate relationships with Reiss and Theory. We therefore concluded that the reel was a marketing communication.
We then assessed whether the ad was obviously identifiable as such. The brands Reiss and Theory were tagged in the reel. However, there was no indication in the caption, or within the video, that alerted consumers that the reel was a marketing communication. In the absence of any clear identifiers, we concluded that the reel was not obviously identifiable as an ad and did not make clear its commercial intent. We therefore concluded that it breached the Code.
The ad breached CAP Code (Edition 12) rules 2.1, 2.3 and 2.4 (Recognition of marketing communications).
Action
The ad must not appear again in the form complained of. We told Reiss Ltd, Link Theory (UK) Ltd and Lydia Millen to ensure that their ads were obviously identifiable as such, for example by including a clear and prominent identifier such as “ad”.
