Background
Summary of Council decision:
Three issues were investigated, of which two were Upheld and one was Not upheld.
Ad description
Two Instagram stories and a post on influencer Erim Kaur’s personal profile @erim:
a. The first Instagram Story, seen on 19 September, featured an Instagram Reel from the @byerim account. The story included super-imposed text that stated “It’s officially out there. We did it. 100% naturally derived”. The reel, which played in the story, included small text in the bottom left-hand corner that stated ‘byerim’, and began with fast moving clips of product packaging showing the percentage of natural ingredients that they contained. The reel then showed large text that stated “100% NATURALLY DERIVIED”, followed by a clip of a woman washing her hair in the shower with text that stated “VEGAN” and “CRUELTY FREE”. The reel then showed the text “BYERIM LUXURY SHAMPOO” faded in the background and the superimposed text “COMING SOON 30.09.22”. The story included a link to “Watch full reel”.
b. The Instagram post viewed on a desktop, posted on 20 September, featured a video showing clips from a photoshoot for “ByErim”. The video began with a clip of a woman pushing a suitcase and superimposed text that stated “What it’s *really like* shooting a campaign for your own brand [eyes emoji]”. Later in the video there was a clip of two women lying down with bottles of BYERIM placed on their hair. The video was accompanied by a voice-over that stated, “Have you ever wondered what it’s like being on set with me? No, nor has anyone else, but I’m gonna [sic] tell you anyway. Presents. Food. Invasion of personal space. But you know what we get stuck in there, we’re hands on. So hands on that I actually bought a microscope and microscoped [sic] everyone's head just to check the before and afters of the shampoo and conditioner. Lots of selfies guys. You guys can imagine we had cameras galore on this set. Speaking of which I was crawling underneath them. I’m looking at this now and I’m wondering why I didn’t go around, but, we move. Of course, filmed a few TikToks because I love the dances. And I brought my polaroid which was such a good idea.”
The post included the caption “It’s me crawling under the tripod for a better look for me @byerim shampoo & conditioner launching 30 sep […] #shootbts #photoshootlife #modellife #smallbusiness #femaleceo”.
c. The second Instagram Story, seen on 29 September 2022, featured an Instagram Reel from the @byerim account. The story included super-imposed text that stated “Coming this Friday @ 6pm”. The reel, which played in the story, included small text in the bottom left-hand corner that stated “byerim”, and featured a woman washing her hair in the shower using BYERIM products. The video included text that stated “CARE”, “FOR”, “YOUR”, “CURLS”, “LIKE”, “NATURE”, “INTENDED”, “100% NATURALLY DERVIED”, “COMING THIS FRIDAY”, “30TH SEPTEMBER” and “BYERIM.COM”. The story included a link to “Watch full reel”.
Issue
The complainant challenged whether the following ads were obviously identifiable as marketing communications:
1. ad (a);
2. ad (b); and
3. ad (c).
Response
1. – 3. Ms Kaur said that she was regretful for forgetting to disclose her monetary relationship with her brand ByErim. Not disclosing the post as an ad was a human error that she had now rectified. She understood the importance of disclosing ads and monetary relationships with her own and other brands.
Assessment
1. & 3. Upheld
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 first assessed whether the Instagram stories, ads (a) and (c), were marketing communications within the remit of the Code. We understood that Ms Kaur was promoting a product from her own brand ByErim which would be available for consumers to purchase shortly after the stories were posted. Because the posts were in non-paid-for space under Ms Kaurs’ control, and because they were intended to promote her hair care products, and were therefore directly connected to the supply of goods provided by her, we considered the posts were marketing communications for the purposes of the Code.
Both Instagram stories featured an Instagram reel that was originally posted on the @byerim Instagram profile (the business page for ByErim products), and had then been re-posted by Ms Kaur on her personal account as stories. Ad (a) included superimposed text that stated “It’s officially out there. We did it. 100% naturally derived”. Ad (c) included superimposed text that stated “Coming this Friday @ 6pm”.
The ads contained various features which might have indicated that there was a commercial relationship between Ms Kaur and ByErim, including that the brand name ByErim appeared in small print in the corner of the reels and more prominently once the reels played. Ms Kaur’s first name was referenced, “We did it” was referenced in ad (a), and that the execution of the reels was stylised like an ad. However, because that context was only clear once the posts had been watched and there were no clear and upfront identifiers, we considered the ads were ambiguous as to Ms Kaur’s commercial relationship with ByErim. We concluded that their commercial intent would not be immediately clear to consumers.
Because ads (a) and (c) did not make clear their commercial intent upfront, we considered that they were not obviously identifiable as marketing communications and concluded that they breached the Code.
On points 1 and 3, ads (a) and (c) breached CAP Code (Edition 12) rules 2.1, 2.3 and 2.4 (Recognition of marketing communications).
2. Not upheld
We first assessed whether the Instagram post was an ad for the purposes of the Code. Similarly to ads (a) and (c), ad (b) was in non-paid-for space under Ms Kaurs’ control and was intended to promote her hair care products. We therefore considered ad (b) was also a marketing communication for the purposes of the Code.
We understood that the post would have been served to both Erim Kaur’s followers, and Instagram users who did not follow Erim Kaur - for example, through the Instagram Explore function. The post featured a video that began with superimposed text that stated “What it’s *really like* shooting a campaign for your own brand” and included scenes from a photoshoot for ByErim. The post tagged ‘@byerim’ in the caption and stated “shampoo & conditioner launching 30 sep”. We considered that consumers would understand from the reference to “your own brand” that the post was a marketing communication for a brand that Ms Kaur had a commercial interest in. We understood that the video would automatically play and considered that the on-screen text, which appeared at the start of the video, would therefore be immediately visible to those who viewed the post. We therefore considered this made sufficiently clear to consumers when they first engaged with the post that it was an ad. We further considered that because the caption tagged the ByErim brand, consumers would understand that “your own brand” was referring to the ByErim brand.
Therefore, because the ad was obviously identifiable as a marketing communication for her own brand, ByErim, we concluded that ad (b) did not breach the Code.
On this point, we investigated ad (b) under CAP Code (Edition 12) rules 2.1, 2.3 and 2.4 (Recognition of marketing communications), but did not find it in breach.
Action
Ads (a) and (c) must not appear again in the form complained of. We told Erim Kaur to ensure that in future her ads were obviously identifiable as marketing communications, for example by including a clear and prominent identifier, such as “ad”.
