An Instagram Story on influencer Jennifer Metcalfe’s Instagram page, seen on 28 April 2021, promoting Hair Cybele featured an image of her holding a hair styling device. Text stated “hair goals” further text stated “Me again! Use code JEN70 for 70% off! @HAIRCYBELE Swipe up to view website”.
IssueThe complainant challenged whether the post was obviously identifiable as a marketing communication.
Jennifer Metcalfe did not respond to the ASA’s enquiries.
Haircybele provided us with copies of email exchanges between themselves and various agencies during which they requested an influencer for their campaign. Haircybele said they entered into a one-off agreement with Jennifer Metcalfe and provided details of the brief for the ad which included instructions on what she should say and how to demonstrate the use of the hair curler and display the results of using it, for which she was paid a fee.
Haircybele said that the code ‘JEN70’ was available for a total of 48 hours and in that period, consumers could benefit from a discount on their website if they used the code. They said there was no mechanism for sales to be tracked back to the content from consumer ‘click throughs’ or sales. Haircybele confirmed the post was an ad, but said that they did not give instructions regarding labelling as influencers usually added any labels themselves when they were posting and because the social media channel belonged to the influencer, they were the only person who could edit it.
The ASA was concerned by Jennifer Metcalfe’s lack of response and apparent disregard for the Code, and ruled that they had breached CAP Code (Edition 12) rule 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay). We reminded her of her responsibility to respond promptly to our enquiries and told her to do so in future.
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 a commercial agreement between Hair Cybele and Jennifer Metcalfe for a one-off promotion covered by the post. The email exchanges we had seen showed that Ms Metcalfe had been paid a fee for one three-frame Instagram story.
We noted from the emails that she had received detailed instructions about how to present the hair styling device, how to demonstrate its use and results, as well as telling consumers about the promotional discount offer. We considered that those aspects of the agreement between Haircybele and Jennifer Metcalfe established that Haircybele had sufficient control over the content of her 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 post would need to be obviously identifiable as such and that they were therefore jointly responsible for ensuring that promotional activity conducted by Jennifer Metcalfe on Haircybele’s behalf was compliant with the CAP Code.
We noted that the discount code did suggest that Ms Metcalfe was undertaking promotional activity on behalf of Haircybele, but we considered that of itself that was insufficient to make clear to consumers the nature of the relationship between the parties.
We assessed the post 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 therefore concluded that the post was not obviously identifiable as a marketing communication and as such breached the Code.
The ad 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 referred the matter to CAP’s Compliance team. We told Haircybele and Jennifer Metcalfe 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”.