An Instagram Reel and Instagram Story from influencer Eliza Batten’s account, seen on 19 January 2021:
a. The Instagram Reel featured a series of shots of Eliza applying various Charlotte Tilbury products including foundation, concealer, eyeshadow, highlighter, mascara, blusher and lip products. The caption stated “Nowhere to go to in my go-to makeup @ctilburymakeup [camcorder emoji] & edited by @editsbyps #EditsByPS #collab #makeup”.
b. The Instagram Story featured the same products as seen in ad (a) with a swipe-up link at the bottom of the screen under each product. Swiping up on the story took users to the relevant product page on the Charlotte Tilbury website.
IssueThe complainant challenged whether ads (a) and (b) were obviously identifiable as marketing communications.
Charlotte Tilbury Beauty Ltd said that, in exchange for providing swipe-up links to the Charlotte Tilbury website in her Instagram stories, Eliza Batten received a small commission via a third-party influencer network used by Charlotte Tilbury. That network required influencers to comply with all applicable advertising rules and disclosure obligations. After being contacted about the complaint, they said that Ms Batten had been contacted to remind her of the ASA’s requirements that all content with affiliate links was obviously identifiable as an ad by way of a prominent upfront label.
Separate to that affiliate arrangement, their external PR agency had gifted Ms Batten’s agent with a selection of free Charlotte Tilbury products in November 2020. They said there was no form of control over Ms Batten’s Instagram posts by Charlotte Tilbury Beauty or their PR agency in relation to those products. They did not request any posts in exchange for the gifted items and they had no approval of the content posted including any specific phrases, hashtags or links used.
They said that they had established requirements for ensuring that gifting of their products complied with the CAP Code and Consumer Protection Regulations, which included a disclaimer that was issued to parties who were sent their products. The disclaimer stated the gift had not been provided with the expectation of anything in return, and that if content about the products was shared it was recommended that the products were declared as a gift from Charlotte Tilbury Beauty. They said they had not expressed a requirement for influencers to provide the brand with social media coverage or otherwise in lieu of accepting the gift.
Ms Batten said the products in the posts were gifted products and that she had subsequently added “#ad” to the Instagram Reel after being contacted about the complaint. Ms Batten also apologised for missing that hashtag from any other post related to that set of gifting from Charlotte Tilbury which may have gone live on her Instagram Stories.
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.
Both the Instagram Reel and Story featured a series of shots of Eliza Batten applying Charlotte Tilbury products, such as a mascara, blusher, eyeshadow and foundation. The Reel and Story were posted on the same day and featured the same products with some shots being identical in content.
The ASA first assessed whether the Reel and Story were ads for the purposes of the Code.
We understood that there was a commercial relationship between Charlotte Tilbury Beauty and Eliza Batten which involved an affiliate arrangement. This meant that Ms Batten would receive a commission for any sales generated by Charlotte Tilbury Beauty from purchases made through any affiliate links included in her social media posts. Such posts were directly connected with the supply of goods, and would therefore constitute ads for the purposes of the Code. Although we acknowledged that Charlotte Tilbury had no direct input into or control over such ads, we nonetheless considered that as the direct beneficiaries of the marketing material through an affiliate programme, Charlotte Tilbury and Ms Batten were jointly responsible for such ads and their compliance with the CAP Code.
The Instagram Story, ad (b), featured swipe-up links which were affiliate links. The post was therefore directly connected with the supply of goods provided by Charlotte Tilbury Beauty, and was an ad for the purposes of the Code.
We noted that the Instagram Reel and Story were posted on the same day and that users viewing the Reel would be able easily to go to Ms Batten's Instagram Story, ad (b), to purchase the products through the affiliate links. Both Ms Batten and Charlotte Tilbury Beauty would therefore benefit from purchases made by Instagram users who initially viewed ad (a). Ms Batten had also tagged the brand ‘@ctilburymakeup’ alongside the hashtag ‘#collab’ in the caption of the Reel which implied that she considered that it was part of her commercial relationship with the brand. Furthermore, the gifted items featured in the Reel were included in the influencer’s existing affiliate arrangement. We considered those factors together meant that the Reel was also directly connected with the supply of goods provided by Charlotte Tilbury Beauty. We were therefore satisfied that the Instagram Reel, ad (a), was also an ad for the purposes of the Code.
We assessed ad (a) as it would have appeared in-feed on Instagram 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 acknowledged the inclusion of the hashtag “#collab” in the caption of the Reel. However, we did not think that the term made it sufficiently clear to users that there was a commercial relationship between Eliza Batten and Charlotte Tilbury and that the Reel was in fact an ad.
We also considered ad (b) did not include any information which made clear to those viewing it that it contained affiliate links and was therefore an ad. In the absence of a clear and prominent identifier beside those links, such as “#ad”, ad (b) did not make clear its commercial intent.
We therefore concluded that ads (a) and (b) were not obviously identifiable as marketing communications and did not make clear their commercial intent.Ads (a) and (b) 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 told Charlotte Tilbury Beauty Ltd and Eliza Batten to ensure that in future their ads, including those which featured affiliate links, were obviously identifiable as marketing communications and made clear their commercial intent upfront, for example, by including a clear and prominent identifier such as “#ad” at a minimum.