Background
This case forms part of a wider piece of work on ads for affiliate marketing using intermediaries, identified for investigation following intelligence gathered by the ASA.
Ad description
Two Instagram stories on Mel Lloyd’s account @my_neutral_place, posted on 24 March 2024:
a. The first Instagram story featured a video of Ms Lloyd’s kitchen sink and tap with the text “Link to my sink (on my Amazon storefront)”. A clickable link labelled “Tap for sink [hand heart emoji]” directed to Ms Lloyd’s Amazon storefront page.
b. The second Instagram story featured another video from Ms Lloyd’s kitchen, with the text “And the link to the tap (also Amazon)”. A clickable link labelled “LINK TO AMAZON TAP [hand heart emoji]” directed to Ms Lloyd’s Amazon storefront page.
Issue
The ASA challenged whether the stories were obviously identifiable as marketing communications.
Response
Wenzhou Xinyu Maoyi Youxian Gongsi t/a XINYU TRADE did not respond to the ASA’s enquiries.
Utsumi UK Ltd t/a Taps UK said that they had not worked with any influencers and had not offered any free products or compensation in exchange for advertising.
Ms Lloyd said that she had purchased the products herself from Amazon and had no relationship with XINYU TRADE or Taps UK. She had not received payment, free products, or any other incentive, and had not been asked to post about the products by any brand (including Amazon). She confirmed that no person or advertising agency had any input in the creation of the stories besides herself. She stated that she was simply showing to her followers her new taps and was sharing where they could purchase them. She apologised for not marking the stories as ads and stated that she would ensure to mark all her ads and affiliate stories appropriately in future. The links took followers to her Amazon storefront where it stated “Earns commissions”, as well as “I’ve picked out my top picks of the Amazon home products that I can recommend honestly to you. You can buy the items by simply clicking on the product images. Please note that by using the links I will get a small percentage of the cost – there is absolutely no extra charge to you”.
Amazon Europe Core Sàrl said they had policies that applied to all creators in their affiliate marketing programme, Amazon Associates, to ensure that they made the appropriate disclosures in relation to affiliate links. Where they became aware of creators failing to meet their policies, they reminded them of their obligation to appropriately disclose affiliate links, asked them to update their posts, and monitored their accounts in future.
Assessment
Upheld
The ASA was concerned by Wenzhou Xinyu Maoyi Youxian Gongsi t/a XINYU TRADE’s lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to respond promptly to our enquiries and told them to do so in future.
The CAP Code stated that marketing communications must be obviously identifiable as such, and they must make clear their commercial intent if that was not obvious from the context.
The ASA first assessed whether the Instagram stories were ads. We understood that Ms Lloyd had purchased the products herself and had not received payment or any other incentive from XINYU TRADE or Taps UK, who we understood were the sellers of the products at the time the ads were seen.
However, the stories included affiliate links that directed to Ms Lloyd’s Amazon storefront, which would earn Ms Lloyd commission when products were purchased through the link. The stories were therefore marketing communications for the purposes of the Code.
We then assessed whether ads (a) and (b) were obviously identifiable as such. The ads were Instagram stories which featured photos of Ms Lloyd’s kitchen sink and tap, together with links to purchase them via her Amazon storefront. We considered that consumers would understand ads (a) and (b) to be documenting Ms Lloyd’s new home taps and sink, which she was sharing with her followers as recommendations without a financial incentive. We acknowledged that once consumers landed on Ms Lloyd’s Amazon storefront “Home décor & accessories” page, text prominently stated “Earns commissions”. However, this was only visible to consumers after they had engaged with the links. We also acknowledged that text appeared on Ms Lloyd’s main Amazon storefront page, along with a further statement to that effect in her bio, though, again, consumers would have to leave the “Home décor & accessories” page that the affiliate links directed to, in order to view that information.
Because consumers therefore had to engage with the ads before it was made clear that they featured affiliate links, we considered that they were insufficient to ensure that the stories were obviously identifiable as ads. We concluded that in the absence of a clear and prominent identifier, such as “Ad”, ads (a) and (b) did not make their commercial intent clear from the outset and were not obviously identifiable as marketing communications.
Ads (a) and (b) breached CAP Code (Edition 12) rules 2.1, 2.3 and 2.4 (Recognition of marketing communications).
Action
The ads must not appear again in the form investigated. We told Wenzhou Xinyu Maoyi Youxian Gongsi t/a XINYU TRADE, Utsumi UK Ltd t/a Taps UK and Ms Lloyd to ensure that their future ads were obviously identifiable as marketing communications, that the commercial intent was made clear, and that identifiers such as “ad” were clearly and prominently displayed. We referred XINYU TRADE’s matter to CAP’s Compliance team.
