A video post from the Instagram account of Millie Mackintosh, seen on 12 June 2015, first showed an image of her with the caption “80s VOGUEING X YOGA”. The video included several similar scenes, and concluded with a scene that included the text “J2O SPRITZ #BlendRecommends”. Text below stated “80s vogeuing [sic] x yoga @Houseofvoga. More of my #BlendRecommends with @drinkj2o Spritz to come! #sp”.
The complainant challenged whether the ad was obviously identifiable as such.
Britvic Soft Drinks Ltd said the ad was one of a series that Millie Mackintosh posted as part of a commercial endorsement for the J2O brand. They believed it was identifiable as a marketing communication, highlighting that the end frame was branded and included the product name, as well as the campaign hashtag “#BlendRecommends”, centrally and prominently on the screen. The design of that shot was also reflected in other elements of the marketing campaign that had appeared at the same time. When viewed on a mobile device, the video was shown on a loop, which meant there would be more than one opportunity to see the end frame if consumers had missed it the first time and continued to view the ad.
In addition, the text that accompanied the video included the brand name “@drinkj2o Spritz” and also the same campaign hashtag. That was the case for all of Millie Mackintosh’s posts for J2O Spritz, and the text “More of my #BlendRecommends with @drinkj2o Spritz to come!” was intended to make clear that the post was one of a series in partnership with J2O. Britvic had also ensured it was agreed that “#sp” would be included with each of the posts in order to make as clear as possible to consumers that the marketing communication was identifiable as such. They believed the ad was obviously identifiable as a marketing communication.
The ASA noted the CAP Code required that marketing communications must be obviously identifiable as such. We considered consumers needed to be aware that they were viewing marketing content prior to engagement, meaning that they should know that they were selecting an ad to view before they watched it. We considered the branded shot clearly contributed to the ad being identifiable as such, but that it was nevertheless not sufficient to ensure that was obvious, because it appeared at the end of the video.
In addition, we considered it was unlikely to be immediately apparent to consumers what the hashtag “#sp” was intended to refer to and, as such, it was also not sufficient to ensure it was obvious the post was a marketing communication. While we understood that “#sp” was intended to communicate that the material was a ‘sponsored post’, sponsored content was a category distinct from that over which an advertiser retained editorial control. We therefore considered it was not a sufficiently accurate label for the ad, even if the meaning had been immediately apparent to consumers.
Finally, we considered the text “More of my #BlendRecommends with @drinkj2o Spritz to come!”, in particular because it identified Millie Mackintosh’s relationship “with” J2O, might indicate to some consumers that the brand had been involved in the process but that it did not clearly indicate that the post was a marketing communication, as opposed to, for example, material that had been financially sponsored, but over which the creator retained editorial control. For the reasons given, we considered consumers would not be aware before engagement that the post was an ad.
We considered the ad was not obviously identifiable as such and therefore concluded that it breached the Code.
The ad breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. 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. and 2.4 2.4 Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature". (Recognition of marketing communications).
The ad must not appear again in its current form. We told Britvic Soft Drinks Ltd to ensure their future ads were obviously identifiable as such and they made their commercial intent clear prior to engagement.