Ad description
An Instagram Story by Tara Maynard, seen on 3 July 2022, featured the text “Hairburst BOGOF sale code is TARAMAYS 10 for an extra 10% off. Lookfantastic code is TARAMAYS for 20% off most items. Elemis code is TARAM25 off full sized products site wide. RODIAL TARA15 (they have 25% off pads this wkend! [sic] Grab the vitc!)”.
Issue
The complainant challenged whether the ad was obviously identifiable as a marketing communication.
Response
Ms Maynard apologised for not labelling the ad. She said that it should have been labelled because she worked with all of the advertisers featured in the ad as part of contracted ongoing retainers. She added that she normally made clear that those types of post were marketing communications. Ms Maynard provided example screenshots of previous Instagram Stories for each of the listed advertisers; three of which included the text “brand partner” and one for LookFantastic which was labelled “ad”.
Rodial Ltd advised that the code “TARA15” which featured in the ad was not an affiliate code. They stated that they did not work with Ms Maynard on an affiliate structure and that Ms Maynard did not receive a percentage of any sales made using that code. They emphasised that Ms Maynard was not requested or paid to post the Rodial discount code in the ad. They said that the code “TARA15” was listed because she had recently received the code and that, in the ad, Ms Maynard had also shared details of a further promotion for Rodial not related to herself. Furthermore, Rodial confirmed that they did work with Ms Maynard and that any social media content by Ms Maynard was declared via the term “Brand Partner”. They also provided 30 screenshots of previous Instagram Stories by Ms Maynard which were labelled “Brand Partner”.
THG Beauty Ltd t/a LookFantastic confirmed that the code “TARAMAYS” was an affiliate code but that Ms Maynard did not earn commission on the use of that code. They provided a copy of their contract, effective from 1 February 2022 to 31 July 2022, under which Ms Maynard was obliged to post a number of Instagram Stories that were required to include a discount code, affiliate links and be labelled “ad”. LookFantastic also stated that the ad was not reviewed for approval prior to posting and that it did not feature any products from the LookFantastic website. Notwithstanding that, they considered that the post was a marketing communication and therefore should have been identifiable as such. LookFantastic added that they had worked with Ms Maynard for several years and that they believed the omission of the word “ad” was an oversight. Furthermore, they said that as a result of the complaint, they had re-issued internal advertising guidance to all influencers engaged by LookFantastic and that they had contacted Ms Maynard to reiterate her obligations to ensure all marketing communications are obviously identifiable as such. They also said that they would monitor their influencer ads in an attempt to ensure all posts remain compliant with the CAP Code.
Hairburst Ltd said that they did not pay Ms Maynard to post the Story and therefore did not believe that it was considered to be an ad. They further stated that Ms Maynard did not receive any sales-based commission from the discount code “TARAMAYS10”.
Elemis Ltd confirmed that the discount code “TARAM25” was not an affiliate discount code for Elemis. They said that Ms Maynard was contracted to produce two series of Instagram Stories between 17 June 2022 and 31 July 2022. They provided a copy of the contract which governed that relationship; it required that the Stories must include Ms Maynard’s unique discount code. However, they highlighted that the ad was not provided by Ms Maynard as part of that agreement. Instead, the Stories which were contractually obliged were posted on 18 June 2022 and 5 July 2022. They said that they also included the code “TARAM25”, along with affiliate links. Furthermore, they said that their contract with Ms Maynard required her to comply with ASA guidelines and the CAP Code.
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 had been individual financial agreements in place between Ms Maynard and the four brands referred to in the ad: Rodial, LookFantastic, Hairburst and Elemis.
We noted that the ad did not form part of any of the contractual agreements that Ms Maynard held with Rodial, LookFantastic, Hairburst or Elemis. Both LookFantastic and Elemis provided us with a copy of their contracts detailing their commercial relationship with Ms Maynard. Under those agreements, Ms Maynard was contracted to develop a number of Instagram Stories which were required to contain her unique discount codes “TARAMAYS” and “TARAM25”. We also noted that the ad under investigation had been made during the contractual periods for both of the agreements.
We did not receive a copy of Ms Maynard’s contract with Rodial or Hairburst. We noted the discount codes “TARA15” and “TARAMAYS10” were unique to Ms Maynard and appeared regularly in other posts relating to those advertisers’ products made by Ms Maynard. Furthermore, we understood that Ms Maynard had an ongoing contractual relationship with both advertisers and because of that Ms Maynard believed that the ad should have been clearly labelled. We noted from Rodial’s response that previous social media content by Ms Maynard had been labelled using the term “Brand Partner”, however, we did not consider that would have been sufficient.
Whilst we acknowledged that the ad under investigation was not paid for individually, we noted that it featured the same promotional codes which were stipulated in the agreements to promote LookFantastic and Elemis. We noted Ms Maynard’s ongoing relationships with Rodial and Hairburst, and that Rodial had confirmed that the “TARA15” code had recently been shared with Ms Maynard. We considered the codes from Rodial and Hairburst likely existed as part of a commercial arrangement. While we understood that Ms Maynard had not received commission for any sales generated through the use of the featured promotional codes, because they were linked to her commercial agreements, we considered the post was an ad for the purposes of the Code. We considered that the promotional codes were included to encourage consumers to buy products from Rodial, LookFantastic, Hairburst and Elemis, and therefore the commercial nature of the content should have been made clear prior to consumers using the code.
We assessed the post as it would have appeared within Stories on Instagram. We noted that the inclusion of the discount codes might suggest that Ms Maynard was undertaking promotional activity on behalf of the listed advertisers, but we considered that of itself was insufficient to make clear to consumers the nature of the relationship between the parties. In our assessment of the ad, we considered there was nothing in its content, such as “ad” placed upfront, that made clear to those viewing it that it was an ad. We therefore concluded that the post was not obviously identifiable as a marketing communication and as such 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 of. We told Ms Maynard, Rodial Ltd, THG Beauty Ltd t/a LookFantastic, Hairburst Ltd and Elemis Ltd to ensure that future marketing communications were identifiable as such, and that identifiers such as “ad” were prominently and clearly visible.
