Two Instagram posts for Engage Clothing:
a. An Instagram Story on influencer Carl J Woods’ @carljwoods Instagram page, seen on 5 March 2021, stated “DELIGHTED TO ANNOUNCE I HAVE TEAMED UP WITH @ENGAGE_CLOTHING” with a thumbs up emoji. “A NEW START UP BRAND WHO ARE GOING TO DO REALLY WELL! DROP THEM A FOLLOW PLEASE!” with a two eyes emoji. Below was an image of the Engage brand.
b. An Instagram post, dated 31 March 2021 on Carl J Woods’ page, featured him wearing a black T-shirt with the Engage branding on the front. Text below stated “My Mates over at @engage_clothing are Dropping this COOL Black Signature Tee Tonight at 8pm!” accompanied by two electric plugs emojis. “Click the Link In My BIO […] #Wednesdays #MustHaves #NewReleases #RushToBuy #NewCollection #EngageClothing #Tee”.
The complainant challenged whether the posts were obviously identifiable as a marketing communication and did not make clear their commercial intent.
Engage Clothing Ltd t/a Engage said the T-shirt Mr Woods was wearing in ad (b) was gifted to him as his management team agreed he would wear it for free to help Engage as a small start-up brand. Engage said there was no agreement in place with Mr Woods, but they had asked his representatives if they could send him some T-shirts so that if he liked them, he could post while wearing them. They said they were unaware of the CAP Code’s requirements regarding the labelling of ads.
Carl J Woods’ representatives said they did not realise that posts of that sort had to be labelled which was why it did not include the tag “paid partnership” as in his other ad campaigns. They said they had amended the image and add the hashtag ‘#gifted’. They said no request to advertise was made by Engage to Mr Woods, neither was any payment by them made to him.
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 there was no contractual agreement between Mr Woods and Engage Clothing. We therefore considered whether the relationship between them established that Engage Clothing had sufficient control over the content of the social media posts, in conjunction with a payment to Mr Woods, for them to be considered marketing communications falling within the remit of the CAP Code.
We understood that the branded T-shirts were not requested by Mr Woods from Engage, but they were sent to him following prior communication between them and his representatives, agreeing that if he liked the product he would wear it and post about it. We considered that the sending of T-shirts to Mr Woods as a gift constituted a payment to him.
In ad (a) Mr Woods stated “delighted to announce I have teamed up with @Engage Clothing a new start up brand who are going to do really well, drop them a follow please”, accompanied by an image of the branding. We considered that ‘teaming up with’ the brand suggested the possibility that an agreement had been made to positively promote the brand. In ad (b) Mr Woods was wearing an Engage branded T-shirt and text stated “My Mates over at @engage_clothing are Dropping this COOL Black Signature Tee Tonight at 8pm!” accompanied by the hashtags “#MustHaves #NewReleases #RushToBuy #NewCollection”. The post referred to the T-shirt Mr Woods was wearing and stated the date and time it was being released for sale, which was the same date as the post. We considered that the inclusion of those specific details about when the product was to be released, together with the statement that it was part of a new collection available to buy, suggested that Mr Woods had information about Engage’s promotional activity which the post was intended to coincide with.
We acknowledged that, in the absence of a formal contract, the specific terms of the agreement were unknown. We also acknowledged that sending the T-shirts to Mr Woods, without prior communication, but in the hope that he might choose to post about them, would not have gone so far as to constitute editorial control. However, we considered that on the basis of the prior communication between the parties, the T-shirts were sent to Mr Woods on the premise that he would post something positive about them on the day they were to be released for sale, with specific details relating to their release. As such, that expectation to post went beyond a mere hope, but was an implicit agreement between Engage and Mr Woods for him to endorse their products which constituted Engage Clothing exercising a degree of editorial control over the content posts. We therefore considered that the overall actions of the parties established that the posts were marketing communications for the purposes of the Code, and should therefore have been labelled as such.
We considered the content of the post in ad (a) did suggest that Mr Woods was undertaking promotional activity on behalf of Engage Clothing, but stating that he had “teamed up with” Engage Clothing was insufficient in itself for Mr Woods to make clear to consumers the nature of the relationship between the parties. We assessed ad (b) as it would have appeared in-feed on Instagram and considered that there was nothing in the content of either post, such as ‘#ad’ placed upfront, that made clear to consumers the commercial intent of the content or the editorial control exercised by the advertiser.
Because the posts were not obviously identifiable as marketing communications, we concluded that they breached the Code.
The ads 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 ads must not appear again in the form complained about. We told Engage Clothing UK and Carl J Woods to ensure that in future their ads were obviously identifiable as marketing communications, and that identifiers such as #ad were clearly and prominently displayed.