Ad description
An Instagram story posted on Chloe Ferry's account @chloegshore1, seen on 8 June, featured the influencer wearing a bikini alongside the text “@missy empire” and a link to missyempire.com.
Issue
The complainant challenged whether the post was obviously recognisable as a marketing communication.Response
UggBugg Fashion Ltd t/a Missy Empire said they expected any influencers working with them to display the text “#ad” or “ad” within their posts when promoting their brand’s products as part of a paid arrangement. They said the ad fell below the standards that they set for themselves and the individuals with whom they work.
They believed the inclusion of the Missy Empire Instagram handle would lead the average Instagram user to believe that it was a paid post and, with that context, it was recognisable as marketing. However, they said they were currently investigating internally how the post went live without “#ad”. They said they were reviewing their internal procedures to ensure that in the future the relevant advertising requirements were always followed.
Chloe Ferry’s representatives said they understood that all ads should be identifiable and that the issue had arisen due to human error.
Assessment
Upheld
The ASA first assessed whether the posts were marketing communications that fell within the remit of the CAP Code. We understood that Chloe Ferry had a commercial relationship with Missy Empire 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 Missy Empire and Chloe Ferry were therefore jointly responsible for ensuring that marketing activity conducted on Chloe Ferry’s account which promoted Missy Empire 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 post did not feature a label such as “#ad” identifying it to consumers as a marketing communication. We considered that the inclusion of the brand’s Instagram handle was not sufficient to identify the post as an ad.
Because the ad did not make clear upfront its commercial intent, with the inclusion of a prominent ad label such as “#ad”, we concluded it 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 Ugg Bugg Fashion Ltd t/a Missy Empire and Chloe Ferry to ensure that their future posts were obviously identifiable as marketing communications, for example by including a clear and prominent identifier, such as “#ad”.
