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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!)”
The ASA investigated whether this was obviously a
commercial/marketing communication, because even though it referred
to codes, discounts, ‘BOGOF’, sale, etc, it was missing the
magic two-letter word… ad.
Yes, really!
And what’s more, they considered it WASN’T obvious to
viewers, so they concluded it did breach the CAP Code!
I know we are all fatigued by these rulings that demonise
influencers who fail to use disclosures, but I really think the ASA
has lost its marbles when it declares that consumers can’t tell
that this kind of post is commercial in nature, and that adding
‘ad’ is the silver bullet.
Keep in mind (because the regulators often seem to forget), that
the average consumer is defined in the law as someone who is
“reasonably well informed, observant and circumspect” NOT
“a moron in a hurry”.
Complaint
One person, yes ONE person, challenged whether the ad was
obviously identifiable as a marketing communication.
I have no idea what this person thought it was, or if they were
so gullible as to believe it was an organic post why they bothered
to contact the ASA about it… but there you go.
Response
Ms Maynard apologised for not using the label “ad” -
which was probably her first mistake!
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.
Leaving her contractual obligation aside, the question for the
ASA was not whether she had lived up to her
contractual obligations with those third parties, but
whether the average consumer would be confused into
thinking this was a purely ‘organic’ post as opposed to
being commercial in nature.
Ms Maynard provided examples 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”.
The various brands raised various arguments either in defence of
Ms Maynard or, in some cases, to distance themselves from the
failure to use #ad… (you can skip these bullet points if you
like):
- 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.
I’m afraid I think they were all barking up the wrong
tree… again, the key point is that it seemed blindingly
obvious that this post was commercial in nature (what the
ASA likes to call an ‘advert’), so it could be argued very
strongly that ‘ad’ wasn’t needed.
Nevertheless, the ASA has shown a completely entrenched view
that adding ‘ad’ is the silver bullet, and without that
label, consumers must think that posts like this are completely
organic and the influencer and brands have never met one another
and don’t benefit financially in any way from this kind of
post…
ASA’s decision
As I’ve mentioned, the ASA UPHELD the single complaint.
Let’s examine the rationale:
The CAP Code states 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.
I repeat, “The CAP Code states 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 rule does not require ‘ad’ to be used, simply that
viewers should be able to distinguish a post with commercial intent
from an organic post.
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, but they
acknowledged that “the post 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 the 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”.
The ASA also noted that the post had been posted during the
contractual periods for both of the agreements.
The ASA did not see a copy of Ms Maynard’s contract with
Rodial or Hairburst. They 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. Also, Ms Maynard had
an ongoing contractual relationship with both advertisers. The ASA
noted from Rodial’s response that previous social media content
by Ms Maynard had been labelled using the term “Brand
Partner”, however, they did not consider that
would have been sufficient.
Whilst the ASA understood that the post under investigation was
not paid for individually, they noted that it featured the same
promotional codes as were stipulated in the agreements to promote
LookFantastic and Elemis. The ASA 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.
The ASA considered the codes from Rodial and Hairburst likely
existed as part of a commercial arrangement. And even though 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, the ASA concluded that the post was
an ad for the purposes of the Code. They believed 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… but in the absence
of the short word ‘ad’, the nature of the post wasn’t
sufficiently clear.
The argument that this wasn’t commercial in nature was
obviously a weak one… but the more important point is, “so
what”, as long as it’s obvious that it is
‘commercial’ in nature.
The ASA conceded that the inclusion of the discount codes
“might suggest that Ms Maynard was undertaking promotional
activity on behalf of the listed advertisers, but [the ASA]
considered that of itself was insufficient to make
clear to consumers the nature of the relationship
between the parties.”
Presumably the average consumer would think she was promoting
those brands out of the kindness of her heart, despite clearly
publicising personalised discount codes that referenced her
name………
In the ASA’s assessment of the ad, they considered there was
nothing in its content, such as “ad”
placed upfront, that made clear to those viewing it that it was an
ad.
The ASA therefore concluded that the post was not obviously
identifiable as a marketing communication and as such breached the
Code and it must not appear again in its current form.
Are you serious?
I am genuinely at a loss as to how the ASA can say the average
consumer would not understand the nature of the relationship
between the influencer and the brands here, despite explicitly
including personalised discount codes and references. Perhaps the
ASA has some secret definition of ‘advert’ that it has
failed to communicate with the rest of the world.
Nor do I understand how adding ‘ad’ magically transforms
this into something the average consumer will immediately
understand – as though the fog around this post would immediately
lift!
Even the ASA’s own (admittedly limited) research into this
issue doesn’t support its position that ‘ad’ clears it
all up for consumers.
So, I will keep banging the same old drum: the ASA is getting so
many of these decisions wrong!
But until they see sense, save your money on legal advice, stick
‘ad’ on every post and you’ll be fine… argh!!
You can find the ruling here: Tara Maynard – ASA | CAP
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
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