Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.Ad description
An Instagram post promoting a weight loss food supplement, published by Influencer Jemma Lucy (@jemlucy) on 5 May 2019 showed her sitting at a table in a bikini and socks, holding a mug.
Three packets were featured on the table. Text stated “I’ve been staying in shape with my go to @skinnycaffe products. I love the Coffee’s [sic], Hot Chocolate’s [sic] and the Thermosyn capsules are amazing! I love to use them as me and some of the girls have been seeing great results and they work with or without exercise. You can lose up to 7lbs in 7 days with Thermosyn. Right now you can claim your first packet of Thermosyn free by clicking here” and linked to the theskinnycaffe.com website.
Issue
We received 25 complaints.
1. Some complainants challenged whether the post was in breach of the Code because it was not obviously identifiable as an ad.
2. Some complainants, who understood that Jemma Lucy was pregnant, challenged whether the ad irresponsibly encouraged the consumption of weight loss products in pregnancy.
3. The ASA challenged whether the claim “You can lose up to 7lbs in 7 days with Thermosyn” was in breach of the Code, because it implied a rate or amount of weight loss attributed to consumption of a food.Response
1. The White Star Key Group Ltd t/a The Skinny Caffe (Skinny Caffe) said they knew Jemma personally and she posted the ad as a favour to a friend. They were seeking to create brand awareness ahead of Jemma giving birth, with a full campaign planned later in the year to help with brand awareness.
2. Skinny Caffe believed that Jemma had not implied that she used the products whilst pregnant and stated that they did not target or actively promote ads to pregnant women. They said the website stated that the products were not suitable for pregnancy. They believed that only a small percentage of Jemma’s followers might have been pregnant. They had received a few messages asking whether the products were suitable for pregnancy and they informed those who asked that they were not.
3. Skinny Caffe said that paying customers had informed them of such weight loss results; they shared that information so that people knew what they could use the product for. Jemma Lucy reiterated Skinny Caffe’s comments in response to all three points. She also stated she did not write the post’s content, which was provided by Skinny Caffe.Assessment
1. 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. Although the ASA acknowledged the personal relationship between Skinny Caffe and Jemma Lucy, we considered that there was also a commercial relationship between them in relation to the promotion of Skinny Caffe’s hot drink products and Thermosyn capsules.
Skinny Caffe provided Jemma Lucy with the products and the wording they wanted her to include when posting about those products, and she then produced the post on her Instagram account with a view to being involved in a full Skinny Caffe campaign in due course. Because Skinny Caffe had provided the wording they had sufficient control over the content for the post to be considered a marketing communication within the remit of the Code. We considered that they were therefore jointly responsible for ensuring that promotional activity conducted by Jemma Lucy on Skinny Caffe’s behalf was obviously identifiable as advertising.
We acknowledged that the post included the handle @skinnycaffe and also included a promotional code which consumers could use to obtain the product. However, we considered that those elements did not indicate to users that the post was a marketing communication. Therefore, in the absence of a clear and prominent identifier at the start of the post, such as “#ad”, we concluded that the post was not obviously identifiable as a marketing communication and that it breached the Code. On that point, the ad breached CAP Code (Edition 12) rules 2.1, 2.3 and 2.4 (Recognition of marketing communications).
2. Upheld
We acknowledged that the post did not make express reference to pregnancy, nor did we consider that Jemma Lucy looked noticeably pregnant in the picture. We understood, however, that there had been widespread press coverage of her pregnancy, and noted that comments under many of her Instagram posts made reference to her pregnancy. We therefore considered that the ad’s audience was likely to be aware that Jemma Lucy was pregnant and considered they would understand from claims such as “I’ve been staying in shape with my go to @skinnycaffe products” and “I love to use them as me and some of the girls have been seeing great results” that she had used the products recently, in order to lose weight. We therefore considered that the post encouraged the consumption during pregnancy of food supplements intended to aid weight loss.
We noted that the current advice from the National Institute for Health and Care Excellence (NICE) indicated that “Dieting during pregnancy is not recommended as it may harm the health of the unborn child”. Further information from the NHS, in relation to pregnant women with a BMI of 30 or above, advised that they should not try to lose weight during pregnancy, as it might not be safe. We also noted that the NHS stated that eating a healthy, varied diet in pregnancy would help pregnant women get most of the vitamins and minerals needed, and only recommended taking folic acid as a supplement and to consider taking a vitamin D supplement.
Because we considered the ad encouraged consumers, including women who might be pregnant, to use the products to lose weight and because we understood that attempting to lose weight whilst pregnant was not generally recommended, we concluded that the ad encouraged an unsafe practice and was irresponsible. On that point, the ad breached CAP Code (Edition 12) rule 1.3 (Responsible advertising) and 4.5 (Harm and offence).
3. Upheld
We noted that according to Regulation (EC) 1924/2006 on nutrition and health claims made on foods, which was reflected in the CAP Code, health claims that referred to a rate or amount of weight loss were not acceptable.
We considered that the claim "You can lose up to 7lbs in 7 days with Thermosyn" clearly referred to a rate and amount of weight loss in relation to a food and that the claim therefore breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 15.6 and 15.6.6 (Food, food supplements and associated health or nutrition claims).
Action
The ad must not appear again in the form complained of. We told The White Star Key Group Ltd t/a Skinny Caffe, and also Jemma Lucy, to ensure that in future their ads were obviously identifiable as marketing communications, for example, by including a clear and prominent identifier such as “#ad” at the start of the post.
We also told Skinny Caffe not to encourage unsafe practices, such as consuming products during pregnancy that were intended to aid weight loss, and not to make claims that referred to a rate or amount of weight loss for foods.
CAP Code (Edition 12)
1.3 2.1 2.3 2.4 4.5 15.6 15.6.6
