Summary of Council decision
Two issues were investigated, both of which were Upheld.
A series of story posts on Charlotte Dawson's Instagram account for BPerfect Cosmetics, seen on 22 April 2021, featured Charlotte Dawson applying makeup from a BPerfect Cosmetics “THE PERFECT STORM” makeup pallet. Each story post featured a swipe up link to BP Cosmetics’ website, and a number featured text that stated “USE MY CODE CHARLOTTE20 FOR 20% OFF IT’S A YES FROM ME … @BPERFECTCOSMETICS”. One post featured the label “#AD” in white lettering superimposed over a white dress that Charlotte Dawson was wearing.
The ASA received two complaints:
1. Both complainants, who understood that the ads contained affiliate links, challenged whether they were obviously identifiable as a marketing communications and did not make clear their commercial intent.
2. One complainant, who believed the Instagram filter exaggerated the efficacy of the advertised cosmetic product, challenged whether the ads were misleading.
BPerfect Ltd said they had been in touch with Ms Dawson and reminded her that filters should not be used in future marketing communications.Charlotte Dawson’s agent provided two screenshots of Ms Dawson advertising BPerfect’s products – a post on her Instagram account, and a post from another Instagram story series, unrelated to that under investigation. They said the posts had not used Instagram filters.
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 had been a financial agreement in place between BPerfect and Ms Dawson and that the posts under investigation were created as part of that agreement. We understood that the posts contained affiliate links, and considered that Ms Dawson would have received commission for any sales generated through the use of the links by consumers. Those links were therefore directly connected with the supply of goods provided by BPerfect, and so the posts were ads for the purposes of the Code. The affiliate links appeared alongside exhortations from Ms Dawson encouraging consumers to buy BPerfect’s products, from which she stood to gain commission through the use of the code provided in the posts. We therefore considered that the commercial nature of the affiliate content should have been made clear prior to consumers clicking through to BPerfect’s website.
We noted one of the posts featured the label “AD”. However, that label appeared on one of a number of posts made for BPerfect, and did not appear at the beginning of the series of story posts. We considered the label would have been significantly more prominent if it had been displayed on the first post in the series, and on all subsequent posts. In the absence of clear and prominent identifiers, we concluded the story posts were not obviously identifiable as marketing communications and did not make clear their commercial intent in breach of the Code.
On that point, the ad breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 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. (Recognition of marketing communications).
The ASA understood that filters were included as an in-app feature on Instagram, and they included ‘beauty filters’ which were designed to enhance a person’s appearance. We considered that the use of filters in ads was not inherently problematic, but that advertisers of cosmetic products needed to take particular care not to exaggerate or otherwise mislead consumers regarding the product advertised.
We considered that consumers would understand from the posts that Ms Dawson had used BPerfect’s product and that her photos and videos reflected the results of the product. We noted that the same filter was applied in all images and videos. However, we considered that consumers were likely to understand from the posts that applying the product would achieve the results shown in the posts. We therefore considered that consumers would expect to experience similar results to Ms Dawson’s appearance in the ads.
We understood that the filter “Luxurious” by amendima1 gave skin a softer, slightly tanned, and smoother complexion. The filter’s effects were therefore directly relevant to the part of the intended effect of the product. Because the ads conveyed a smoothing, skin-enhancing effect of the product, we considered that the application of the filter to the images was directly relevant to the claimed performance of the product and gave a misleading impression about the performance capabilities of the product.
On that point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
The ads must not appear again in the form complained about. We told BPerfect Ltd and Charlotte Dawson to ensure that their future ads were obviously identifiable as marketing communications, and that identifiers such as #ad should be clearly and prominently displayed. We also told them not to apply beauty filters to photos which promoted beauty products if such filters were likely to mislead regarding the effect the product was capable of achieving.