Two Instagram posts for Select Fashion:
a. The first post seen on 16 December 2020, appeared on influencer Mandi Vakili’s page, and featured an image of Mandi and her sister Anna sitting on a bed. Text underneath stated “It’s been a crazy year! But we have to focus on the positive moments, and me and Anna are over the moon about having a collection with @selectfashion…I’ve worked with them for a long time since Anna came from the island … Me and @annavakili_had so much fun working together and with @selectfashion team on this edit … Set your alarms for 7pm and head over to @selectfashion website or pop in store to check out our collection”.
b. The second post, on TV personality Anna Vakili’s page, was seen on 30 December 2020. It featured an image of both sisters with text underneath which stated, “Same but different @selectfashion” accompanied by a black heart emoji.
IssueThe complainant challenged whether ads (a) and (b) were obviously identifiable as marketing communications and did not make clear their commercial intent.
ResponseGenus (UK) Ltd t/a Select Fashion said that they had entered into a commercial arrangement with Mandi and Anna Vakili and provided a copy of the contract, which they said was limited to modelling products manufactured and offered for sale to the public. They said the contract stated that any posts by Mandi and Anna Vakili, which promoted Select Fashion products, were to be correctly tagged and identified as being part of a commercial arrangement. They said the omission was outside of Select Fashion’s control. Select Fashion said that the agent for Mandi and Anna Vakili confirmed that it was their error that the identifying tag was omitted, which had been corrected, and in future all ads would be credited if a brand were involved. We did not receive any response from Mandi or Anna Vakili.
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 was a commercial relationship between Select Fashion and Anna and Mandi Vakili. We were provided with a copy of the agreement, under which Anna and Mandi Vakili were contracted to post seven Instagram posts and seven Instagram stories each, for which they would be paid a set fee.
We noted from the agreement that images for the posts were required to be emailed to a particular team for approval prior to the date for posting, and that Select Fashion had the right to request a reshoot of a photograph if they decided that was necessary. We also noted the contract stated that images posted on social media were to include the Select Fashion Instagram account (@selectfashion and they were to be tagged as a business partner on the post. We considered that those aspects of the agreement between Select Fashion and Anna and Mandi Vakili established that Select Fashion had sufficient control over the content of social media posts, in conjunction with a payment arrangement, for them to be considered marketing communications falling within the remit of the CAP Code. We therefore considered that the posts would need to be obviously identifiable as such.
We noted that ad (a) referred to the clothing collection the sisters had worked on with Select Fashion and ad (b) featured them wearing outfits with both posts being tagged to Select Fashion’s Instagram account. However, we considered that was insufficient to ensure the posts were obviously identifiable as ads and there was nothing in their content, such as “#ad” placed upfront that made clear to those viewing it that they were ads. We therefore concluded that the posts were not obviously identifiable as marketing communications and as such 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 of. We told Genus (UK) Ltd, Anna Vakili and Mandi Vakili to ensure that, in future, their ads were obviously identifiable as marketing communications, for example, by including a clear and prominent identifier such as “#ad”.