Summary of Council decision:
Two issues were investigated both of which were Upheld.
Three Instagram stories on influencer Charlotte Dawson’s Instagram account (@charlottedawsy):
a. The first story, seen during July 2022, featured an image of Charlotte Dawson wearing a bathing suit. Text above the image stated “california by marianna_hewitt #myownbrand.” Text underneath stated “DAWSYLICIOUSTANNING.CO.UK I’ve only gone & got you all 33% OFF all my tanning mousses & tanning drops @dawsylicioustanning use code TAN33 [accompanied by a heart emoji].
b. The second story, also seen during July 2022, featured an image of Charlotte Dawson wearing a dressing gown. Text above the image stated “california by Marianna_hewitt #myownbrand Forgot to post these this morning I promised you to show you all my tanned pea face this morning from my tanning drops @dawsylicioustanning DAWSYLICIOUSTANNING.CO.UK Use code TAN33 for 33% OFF” accompanied by a party face emoji.
c. The third story, seen on 28 June 2022, featured an image of an arm with sparkle emojis. Text above the image stated “Golden Shine by felipealcantaraof #myownbrand Obsessed with my illuminating skin moisturiser @dawsylicioustanning use code SHIMMER50 DAWSYLICIOUSTANNING.CO.UK.” Text at the bottom of the post stated “Matthew glowing” with laughing face emojis.
The ASA received five complaints:
1. Two complainants challenged whether the ads were obviously identifiable as marketing communications.
2. Three complainants, who believed the Instagram filters exaggerated the efficacy of the products featured in the posts, challenged whether the ads were misleading.
1. Charlotte Dawson’s representatives pointed out that all three stories were tagged with #myownbrand which, in their view, made clear that she was promoting her own products. They did not consider the size of the font to be relevant, as it was subjective to each person and as long as the font was legible, Ms Dawson could not control where a particular viewer decided to look on screen. They said whenever they worked with a brand, the size of font in ads was never mentioned in briefs provided by a brand.
Having been appointed as Ms Dawson’s new management following publication of the ads, they had advised her that sometimes using #myownbrand would not be sufficient and they told her to include #ad where necessary.
2. Charlotte Dawson’s representatives said the filters were in no way intended to make the product look different or to enhance its effects. They explained that Ms Dawson used filters frequently in her Instagram stories to make her content more interesting and for filming various content, as many Instagram users did.
They said the idea that the filters were applied to give a misleading impression about the performance capabilities of the product was subjective to each individual person. They had looked at the filters themselves and, in their opinion, although the names of the filters may for some allude to a tanning effect, that was not the effect they experienced and their own skin tone was more tanned and warm without the filters applied. They believed it was clear, with a filter named “Golden Shine” which generated sparkles on the screen, that it was a filter used because Ms Dawson enjoyed how it looked on the screen, rather than that she was trying to suggest to her followers that her Dawsylicious tanning product would produce the sparkles in reality. They understood it was named “Golden Shine” because the colour of the sparkles was golden. However, they had requested that Charlotte be more careful with her choice of filters when promoting her tanning range.
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 the tanning products featured in ads (a), (b) and (c) were from Ms Dawson’s Dawsylicious Tanning range and that she was therefore promoting her own products which were available for consumers to purchase. Each post also included promotional codes which consumers could use when obtaining the products. We therefore considered that the posts were in non-paid for space under Ms Dawson’s control, directly connected to the supply of goods, and they were therefore marketing communications for the purposes of the Code.
All the ads included the handle “@dawsylicioustanning”, her Instagram username “charlottedawsy”, and the URL “DAWSYLICIOUSTANNING.CO.UK”, in reference to her surname. However, we did not consider that those references were sufficiently clear to make the posts obviously identifiable as ads. We considered that although some of Ms Dawson’s followers might be aware of her commercial relationship with Dawsylicious, it was not immediately clear to all Instagram users from the posts itself that she was promoting her own commercial venture. There was nothing in their content, such as “#ad” placed upfront to indicate to users that the posts were marketing communications.
We expected that a label identifying a post as an ad would be sufficiently clear and prominent to make immediately clear its commercial intent. We noted that all the posts featured the hashtag #myownbrand, in the same colour and font as the main section of text in each post, but it appeared to be smaller in size. It was also placed in the top right-hand corner, whereas the main text of the posts were placed more centrally and prominently. We also considered that consumers would be drawn to the larger sections of text which described the effects of the product. We therefore considered the #myownbrand hashtag was likely to be overlooked by Instagram users and was insufficient to make clear that Charlotte Dawson was promoting products from her own brand.
Because the posts did not make sufficiently clear their commercial intent, that they were ads for Ms Dawson’s own brand, we concluded they were not obviously identifiable as marketing communications and therefore breached the Code.
On that point, ads (a), (b) and (c) 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).
We 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.
Ads (a), (b) and (c) all promoted Charlotte Dawson’s tanning and moisturising products. Ad (a) featured an image of Charlotte Dawson in a bathing suit with text which stated “all my tanning mousses & tanning drops”. Ad (b) featured an image of her in a dressing gown with text that stated “I promised you to show you all my tanned pea face this morning from my tanning drops.” Ad (c) featured an image of her arm and stated “Obsessed with my illuminating skin moisturiser.” We considered that consumers would understand from the posts that Ms Dawson had used the products featured and that her image reflected the results of the product and that by applying the product they would achieve the results shown in the posts.
We noted that ads (a) and (b) stated “california by Marianna_hewitt” and ad (c) stated “Golden Shine by felipealcantaraof” which we understood were filters. We considered the names “California” and “Golden Shine” suggested that they would have a tanning and smoothing effect and therefore the filter’s effects were directly relevant to the intended effect of the product. Ad (c) also showed golden sparkles on Ms Dawson’s arm. We accepted that the effects of some filters would be easy to identify as a camera effect. However, we also considered that a filter might have more than one effect and that in the context of tanning and moisturising products designed to alter the appearance of the skin and purchased with that expectation, consumers would not always be able to obviously distinguish when an image represented the results that could generally be achieved from using the product or merely showed the camera effect of a filter.
Because the ads conveyed a tanning and smoothing effect of the product, we considered that the application of the filters 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 ads 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 of. We told Charlotte Dawson to ensure that her future ads were obviously identifiable as marketing communications, and that identifiers such as #ad should be clearly and prominently displayed.
We also told her 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.