A TikTok post on Luke Mabbott’s account @lukemabbott, seen on 4 November 2020, featured a video of Luke Mabbott wearing two outfits. A caption alongside the video stated “Which look do you prefer” and “Outfit from @boohooman #boohooman”.
IssueThe complainant challenged whether the post was a marketing communication without being obviously identifiable as such.
ResponseBoohoo.com UK Ltd (Boohoo) said that BoohooMAN and Luke Mabbott had a contractual agreement in place, which included an obligation to ensure all social media posts were obviously identifiable to consumers as an ad. Upon notice of the complaint, they contacted Mr Mabbott’s management to remind him of his contractual obligations. They said that Mr Mabbott agreed to amend the ad, to ensure that it was properly disclosed as such, and confirmed any future posts would be posted in accordance with their contractual agreement and the ASA’s guidelines. Mr Mabbott said that the absence of an appropriate label was an oversight and that they would make similar posts obviously identifiable in future.
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 understood that there was a commercial relationship between Boohoo and Mr Mabbott which involved a contractual agreement that covered the post. We understood that the post fell within the remit of the CAP Code. We considered that they were therefore jointly responsible for ensuring that promotional activity conducted by Mr Mabbott on Boohoo’s behalf was compliant with the CAP Code. We assessed the post as it would have appeared in-feed on TikTok and considered that there was nothing in its content, such as “#ad” placed upfront, that made clear to those viewing it 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 2.1 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).
We told Boohoo.com UK Ltd and Luke Mabbott to ensure that in future their ads were obviously identifiable as marketing communications, for example, by including a clear and prominent identifier such as “#ad”.