Two ads, on the advertiser's website and Instagram page, for a skirt which was featured in their 'School Days' or 'Back To School' range:
a. The website ad on www.americanapparel.co.uk featured an image of a girl wearing the skirt, a top and white underwear, bending over to touch the ground, photographed from behind from a low angle. Her crotch and buttocks were visible.
b. The ad posted on the advertisers' UK Instagram page featured an image of a girl wearing the skirt and a top leaning into a car, photographed from behind from a low angle. Her buttocks were visible.
Two complainants challenged whether the ads were offensive and irresponsible, because they were overtly sexual and inappropriate for a skirt advertised as school-wear.
American Apparel (UK) Ltd said the images which appeared in their advertising featured non-airbrushed, everyday people, most of whom were not professional models. They said their approach was not graphic, explicit or pornographic, but was designed to show a range of different images of people who were natural, not posed and real. They said their models were happy, relaxed and confident in expression and pose and were not portrayed in a manner which was vulnerable, negative or exploitative.
American Apparel said they drew a strong distinction between their advertising in print or in conventional media, which was circulated indiscriminately throughout a population and which they therefore carefully monitored, and web images and social media outlets. They believed they were well known for their provocative images and ads, and their fans and customers were therefore well aware of those images before they chose to actively follow American Apparel's social media accounts or browse its website. American Apparel believed the ads had not been published to the general public but rather to consumers who had 'opted in' to see images consistent with their branding.
American Apparel said the model in the ads was a 30-year-old woman who was one of their photographers. They said the ads did not, and were not intended to, represent an underage model. They said the images had been posted by a junior and relatively inexperienced member of their social media team, but the images had been removed for a variety of reasons after appearing only briefly. They said the images were not part of any Back to School campaign or marketing effort.
The ASA considered that the way in which the model was posed in both images, with her head and upper body obstructed in ad (a) by her legs, and cut off from the frame in ad (b), meant that the focus was on her buttocks and groin rather than on the skirt being modelled. We considered the images were gratuitous and objectified women, and were therefore sexist and likely to cause serious and widespread offence. Furthermore, we considered the images imitated voyeuristic 'up-skirt' shots which had been taken without the subject's consent or knowledge which, in the context of an ad for a skirt marketed to young women, we considered had the potential to normalise a predatory sexual behaviour. We considered the ads had therefore not been prepared with a sense of responsibility to consumers or to society.
Notwithstanding the above, we noted that, on American Apparel's website, the skirt was featured in its "SCHOOL DAYS" or "BTS" (which we understood to stand for 'Back To School') 'Lookbook', and that the image on Instagram had been similarly referenced. We also noted it was not possible, from the images, to determine the age of the model because her face was not visible. We considered that, from the context in which the ads appeared, it was likely that those who viewed them would understand that the model was, or was intended to appear to be, a schoolgirl. We considered the ads had the effect of inappropriately sexualising school-age girls and were therefore offensive and irresponsible for that reason too.
We noted American Apparel's view that, because consumers would be aware of their branding, they would expect to see such images when viewing their Instagram page or visiting their website. We considered, however, that the ads were irresponsible and likely to cause serious and widespread offence irrespective of whether consumers had "opted in" to American Apparel's marketing communications, and particularly in the context of a clothing brand which had appeal to young people, including teenagers under 16 years of age. We noted American Apparel had removed the images before we had contacted them, but were nonetheless concerned that the images had appeared in their advertising at all. We concluded the ads were in breach of the Code.
The ads breached CAP Code (Edition 12) rules
Marketing communications must be prepared with a sense of responsibility to consumers and to society.
Marketing communications must not contain anything that is likely to cause serious or widespread offence. Particular care must be taken to avoid causing offence on the grounds of race, religion, gender, sexual orientation, disability or age. Compliance will be judged on the context, medium, audience, product and prevailing standards.
Marketing communications may be distasteful without necessarily breaching this rule. Marketers are urged to consider public sensitivities before using potentially offensive material.
The fact that a product is offensive to some people is not grounds for finding a marketing communication in breach of the Code. (Harm and offence) and 5.1 5.1 Marketing communications addressed to, targeted directly at or featuring children must contain nothing that is likely to result in their physical, mental or moral harm: (Children).
The ads must not appear again in their current form. We told American Apparel (UK) Ltd to ensure their future advertising was prepared with a sense of responsibility to consumers and to society, and that it contained nothing that was likely to cause serious or widespread offence.