Ad description
A TikTok post on influencer Lydia Elise Millen’s account @lydiamillen, seen on 24 November 2022, showed Ms Millen in a dressing gown in a hotel room. She said “We’ve just checked into The Savoy in London for our annual Christmas shopping trip. This evening we’re going to the theatre here at The Savoy and I need you to help me pick my outfit”. She tried on two outfits and asked followers to comment on which they preferred.
Issue
Three complainants challenged whether the ad was obviously identifiable as a marketing communication for The Savoy.
Response
Accor Ltd t/a The Savoy said they had had an ongoing commercial relationship with Lydia Elise Millen since early 2022. It related only to advertising on Instagram in the form of a “Fairmont Ambassadorship”. The stay featured in the ad was part of that agreement. Under the terms of the Ambassadorship, content that mentioned Fairmont or any of their associated hotels such as The Savoy was deemed to be an advertisement and had to be labelled as a paid-for ad or partnership when it appeared on Instagram. They said content which appeared on Ms Millen’s TikTok account was outside of the scope of that agreement; the posts were not paid for by them and were not therefore ads for Fairmont or The Savoy.
Lydia Elise Millen’s representative said the ad did not show The Savoy and was not paid-for content or signed off by them. They said that under the Fairmont Ambassadorship Ms Millen had five stays at the hotel with a requirement for her to post two Instagram stories per stay on two of them. The ads were labelled as such and were paid-for and signed off by Fairmont, but the agreement applied to Instagram only. They said the TikTok posts were outside the agreement; that Fairmont did not have sign-off rights and that they were not paid-for ads for Fairmont or The Savoy. They supplied a copy of the agreement between Ms Millen and Fairmont.
Assessment
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.
The ASA first assessed whether the post was a marketing communication for the purposes of the Code.
There was an Ambassadorship agreement in place between Ms Millen and Fairmont under which she was required to post stories on her Instagram page in exchange for hotel stays at The Savoy.
The post complained about had appeared on TikTok rather than Instagram and was therefore not posted in accordance with the terms of the contractual agreement between Ms Millen and Fairmont. However, we understood that it contained similar content to the Instagram ad and had been posted on or around the same dates. We also considered that the further exposure on TikTok about The Savoy by Ms Millen was likely to benefit the brand. We acknowledged that Fairmont and Ms Millen’s representative had stated that the post under investigation was not paid for and had not been signed off by Fairmont. However, we considered that because it was so closely linked to the Instagram ad, and therefore linked to the ongoing commercial agreement between Ms Millen and Fairmont under which she was paid in hotel stays in exchange for posting content on Instagram about The Savoy, it was also a marketing communication for the purposes of the Code.
We then assessed whether the post was obviously identifiable as a marketing communication.
We considered that there was nothing in the post’s content, such as “#ad” placed upfront, that made it clear to those viewing the post that it was an ad. We therefore concluded that the post was not obviously identifiable as a marketing communication and as such breached the Code.
The ad breached CAP Code (Edition 12) rules 2.1, 2.3 and 2.4 (Recognition of marketing communications).
Action
The ad must not appear again in the form complained about. We told Accor (UK) Ltd t/a The Savoy and Lydia Elise Millen to ensure their ads were obviously identifiable as marketing communications in future and made clear their commercial intent upfront, for example, by including a clear and prominent identifier such as “#ad” at a minimum.
