Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
An Instagram story posted by Kayleigh Johnson, @kayleighjcouture, seen on 29 June 2024, featured a box with the question “Are you going to breastfeed? If not what formula will you use?”. Text underneath stated, “I will definitely try but much like with Caleb I’m not putting pressure on it. It didn’t really work out with him (although I did manage to give him lots of colostrum) so we did switch to formula – I’ll link the one we used! […] We’ve also got some of the pre-made mini bottles for the hospital bag. Ps – not here for any judgement or ‘breast is best’ comments. Fed is fed, end of. Caleb is well ahead of developmental ‘targets’ and a healthy boy so I have no shame in formula feeding whatsoever.” Underneath, an affiliate link titled “Formula we use” linked to a product page on Sainsbury’s website for an infant formula milk powder.
Issue
Two complainants challenged whether the ad:
1. breached the Code, because it was a marketing communication for infant formula; and
2. was obviously identifiable as a marketing communication.
Response
1. Sainsbury’s Supermarkets Ltd (Sainsbury’s) acknowledged that the ad should not have appeared, because marketing for infant formula was prohibited, and the product should not have been promoted by the influencer. They took immediate action to remove the ad.
Sainsbury’s said they did not have any involvement in the creation of the content of the post, but understood they were jointly responsible for the post. They explained that Ms Johnson was working with the affiliate network Stylink (Stylink Social Media GmbH). Sainsbury’s used the affiliate platform CJ (Conversant Europe Ltd).
Sainsbury’s said they could not block affiliates from generating links to products on their website from a technical perspective. Instead, when Stylink signed up to the CJ affiliate platform they would have agreed to comply with CJ’s terms, which stated that users of the platform were responsible for compliance with the requirements of all relevant legislation in the UK. Sainsbury’s considered it was therefore also Stylink’s responsibility to adhere to the relevant legislation and the CAP Code.
Additionally, when being onboarded onto Sainsbury’s affiliate programme, via the CJ platform, Stylink would have agreed to comply with Sainsbury’s own specific terms and conditions. Sainsbury’s said they were in the process of updating those terms and conditions to more clearly outline how their partners should ensure compliance with all relevant consumer protection legislation and the CAP Code. This would include terms that outlined prohibited categories which should not be advertised by affiliates, such as infant formula. All affiliates would have to accept those terms when they were uploaded to the platform, and failure to comply with the terms would lead to removal from Sainsbury’s affiliate programme.
Kayleigh Johnson said she was not aware that it was prohibited to market infant formula. If she had known this, she would not have generated the affiliate link. She removed the ad.Stylink Social Media GmbH t/a Stylink explained that Stylink operated as a publisher on various affiliate networks, which collaborated with retailers to enable influencers to create affiliate links. Stylink re-created those affiliate links into their deeplinks to facilitate tracking for their influencers, who acted as sub-publishers. Stylink’s platform listed retailers with whom they had a partnership, along with the retailer’s pence-per-click-rate. Influencers could see a retailer’s website where all products were shown.Stylink was signed up to Sainsbury’s affiliate programme through the CJ affiliate platform. The product links were provided from Sainsbury’s website and created in CJ. Stylink did not make technical checks on the product links provided by Sainsbury’s (or other retailers), as their procedure relied on the networks and retailers to block any unsuitable products. They considered it was the retailers’ and networks’ responsibility to assure Stylink, as a publisher, that they could not create links to such products.
Stylink did, however, monitor for compliance through random daily sampling of created links. They also had policies in place to prevent the promotion of products that violated advertising regulations. Their terms and conditions, and their guidelines, were regularly communicated in various ways to influencers who signed up to their network, including when they were onboarded onto the network. That included passing on information about the ASA’s Advertising Codes.They said they did not want their creators to inadvertently promote prohibited products and would take steps to address that. They would also work closely with their retail partners, including Sainsbury’s, to ensure that restricted products were not made available to be used as affiliate links.
Conversant Europe Ltd t/a CJ said that Stylink was a publisher that operated a platform for people to promote brands via social media and websites. Publishers must agree to the terms of CJ’s Publisher Service Agreement (PSA). Those terms included that they must comply with all relevant legislation and the rules of relevant regulatory authorities. Advertisers could also add specific terms when they agreed to work with a publisher, which publishers must review and accept in order to work with that advertiser.
CJ expected all publishers to understand and comply with the terms of the PSA, and with the relevant legislation under which they operated. Active compliance monitoring of affiliate content was the responsibility of the advertiser. Where advertisers brought breaches of the PSA to CJ’s notice, CJ could take action by reversing any commission earned by the publisher on the ad or link that incurred the breach. If the breach was sufficiently severe, they would end their relationship with that publisher.
They confirmed that in this case, the ad was quickly removed, and no commission had been earned. Therefore, no further action was taken beyond a warning to the publisher to remind them of their contractual obligations to CJ and to Sainsbury’s. Sainsbury’s had since submitted new terms and conditions to CJ which gave more specific guidance to publishers about the CAP Code and other relevant legislation.
2. Sainsbury’s said it appeared that Ms Johnson had used a label in the top left-hand corner of the story, but that it was not clear and prominent. They acknowledged it was not clearly labelled as an ad.Kayleigh Johnson said she typically always included “Aff” or “Ad” when using affiliate links, so was not sure why she had not done so in this instance.
Stylink said they consistently informed their influencers through various means, including during onboarding, on social media and in newsletters, that they must use the label “#Ad”. They also were told to include a link to the Stylink Instagram account so that Stylink could check the content, and to mention the brand to which the affiliate link related. Influencers who did not use “#Ad” or instead used “#Aff” were warned, and in the worst cases they prevented influencers from using the network.
Assessment
1. Upheld
The CAP Code stated that, except for those in a scientific publication or, for the purposes of trade before the retail stage, a publication of which the intended readers were not the general public, marketing communications for infant formula were prohibited.
In the ad, Ms Johnson referenced that she had formula-fed her first child and had linked to a product listing on Sainsbury’s website for the infant formula milk she had used. The ASA considered that by including an affiliate link to an infant formula product, the ad promoted infant formula. We welcomed Ms Johnson and Sainsbury’s actions to remove the ad. However, because the ad had the effect of marketing infant formula to the general public, which was prohibited under the Code, we concluded that it breached the Code.On that point, the ad breached CAP Code (Edition 12) rule 15.10 (Infant and follow-on formula).
2. Upheld
Notwithstanding that the ad should not have included an affiliate link to an infant formula product, we also reviewed whether the Story was identifiable as an ad.The CAP Code required 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 link to the infant formula product was an affiliate link. That meant Ms Johnson would receive a commission for any click-throughs to the product listing on Sainsbury’s website. We considered the commercial nature of the affiliate content should have been made clear in the ads.It appeared that the word “Aff” was stated in the top-left hand corner of the Story, but it was placed directly behind the text “baby #2”. “Aff” could hardly be seen and was likely to be overlooked by those who saw the ad, particularly in the context of an Instagram story which was displayed for only five seconds. We therefore considered the “Aff” label was not sufficiently prominent. Furthermore, we considered that the label “Aff” was unlikely to be understood by most consumers to be a shortening of the word “affiliate”, and that even the word “affiliate” as a standalone label was unlikely to be sufficient to make clear that the story contained an affiliate link and was therefore an ad.Because the label “Aff” in the ad was neither sufficiently prominent nor sufficiently clear as an identifying label, we concluded the ad was not obviously identifiable as such and did not make clear its commercial intent, and therefore breached the Code
.On that point, the ad breached CAP Code (Edition 12) rules 2.1 and 2.3 (Recognition of marketing communications).
Action
The ad must not appear again in the form complained of. We told Sainsbury’s Supermarkets Ltd and Ms Kayleigh Johnson to ensure their future ads did not have the effect of marketing infant formula. We also told them to ensure that affiliate links were obviously identifiable as marketing communications and made clear their commercial intent upfront, for example, by including a clear and prominent identifier such as “#ad”.
