Several posts appearing on the Instagram page of Marnie Simpson, a reality television personality, seen in September and October 2018:
a. The first post stated, “The hottest fires burn blue, and her eyes are no different … Lenses | my range @ispyeyes …”.
b. Another post stated, “Omg I’m so excited for Halloween this year! Ive [sic] got some amazing ideas!! Make sure to follow iSpyEyes for all the latest updates on new style [sic] of lenses available! Check out these scary ones I wore last year!!!!!”.
c. A third post stated, “Pretty blue eyes … From my range @ispyeyes”.
The complainant, who understood the products being promoted were zero-powered contact lenses, which could only be supplied under the supervision of a registered optometrist, dispensing optician or medical practitioner, challenged whether the ads misleadingly implied that the products could legally be sold by the advertiser in the UK.
iSpyEyes 1964262 believed that coloured contact lenses were not classified as an optical appliance in the UK and could therefore be sold across the UK and EU without the supervision of an eye care practitioner. In support of their position, they provided legal advice received in 2010 which stated that the advertiser’s products were not covered by the Opticians Act 1989 because they were not designed to correct, remedy or relieve a defect of sight, and were therefore not an ‘optical appliance’.
iSpyEyes submitted an undated factsheet from a company called MesmerEyez which included reference to the Opticians Act (Amendment) Order 2005 and which suggested that non-corrective contact lenses did not need to be sold under the supervision of an eye care practitioner because they were not ‘optical appliances’. They also provided an extract from a 2007 debate in the EU Parliament, where a question about non-corrective contact lenses was addressed and which indicated that they were not classed as medical devices. They also provided correspondence from the MHRA which indicated that, in 2007, zero-powered contact lenses were outside the scope of the Medical Devices Directive.
Marnie Simpson’s response was provided by her solicitors. They pointed out that the FAQ section of the iSpyEyes website stated “… you should visit your optician for a lens fitting prior to purchase as all our lenses are one size”. They considered that this directed consumers to understand that the sale of the lenses should be under the supervision of a registered practitioner, before the point of sale was effected. They added that there was also a ‘HELP WITH WEARING’ section on the website which contained further safety advice and a demonstration video from Marnie. They did not consider that Marnie Simpson was encouraging an unsafe practice.
They also considered that Marnie’s social media posts were not directed at any particular territory but to her fan base in general. They acknowledged that Geordie Shore, the TV show through which she had become famous, was made and originally broadcast in the UK, but said it was currently broadcast in several other countries, which they listed. They stated that Instagram did not provide information on the location of followers or from where ‘likes’ were posted. Data was provided regarding Facebook, which showed that there were the number of followers outside of the UK and stated they made up over half of the total number of her Facebook followers. Therefore they did not consider the Instagram posts could be said to be targeted at UK consumers. They added that the posts did not comment on which territories the lenses were available in and they considered the restrictions on selling lenses to be provided by the product seller on their website.
The ASA understood that Marnie was a UK based celebrity, who had appeared on a British TV show, which had been very successful in the UK. Although we acknowledged that Marnie had numerous Facebook fans based across the world, we noted from the documentation provided that she had a significantly higher number of Facebook fans based in the UK, compared to any other single territory. We also noted we had not seen documentation regarding the geographical location of her followers on Instagram. Moreover, we considered the ISpyEyes website was clearly tailored to UK consumers. For example, prices were in pound sterling, the shipping options included “UK next working day delivery” and the terms and conditions stated that “These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of the UK”. The distribution and returns address provided on the iSpyEyes.com website were also both based in the UK. We therefore considered that the posts were ads directed at UK consumers.
We considered that consumers who saw the ads would assume that zero-powered contact lenses could be legally sold by the advertiser in the UK, and that there were no safety concerns associated with purchasing the product directly from the advertiser.
Information on the website of The Eyecare Trust, in relation to zero-powered contact lenses, stated that contact lenses sat directly on the surface of the eye, so the risk of infection and causing trauma or injury was high, and that poorly fitting lenses, extended wear and poor hygiene habits could all lead to eye infections, corneal ulcers, abrasions and even loss of vision. The NHS website stated that people should not “wear any contact lenses, including novelty lenses, that haven't been properly fitted to your eyes”.
We understood that the relevant legislation was The Opticians Act 1989, as amended from 30 June 2005 by the Opticians Act 1989 (Amendment) Order 2005. The Act provided at Section 27(1) that “A person shall not sell (a) any contact lens for use by any person who does not have a valid specification provided pursuant to section 25(5) above; or (b) subject to the following provisions of this section, any optical appliance or zero-powered contact lens unless the sale is effected by or under the supervision of a registered medical practitioner, a registered optometrist or a registered dispensing optician”. Zero-powered contact lenses were referred to explicitly in the legislation, and we contacted the General Optical Council (GOC), who confirmed that they understood the sale of such lenses to be illegal if they were not sold by (or under the personal supervision of) a registered optometrist, registered dispensing optician or registered medical practitioner.
We therefore considered that zero-powered contact lenses, which included the products in the iSpyEyes range, were covered by the Act. We acknowledged that the iSpyEyes website stated the lenses were all one size and suggested that consumers should have a lens fitting by an optician prior to purchase. However, that information was only given if the consumer clicked on the relevant part of the FAQs, and it was irrelevant to the question of whether the lenses were being sold by or under the supervision of an appropriate person, in accordance with the Act. We noted that the website did not include any further information or detail about the relevant legal framework in the UK.
We had not seen any evidence that the lenses were being sold by, or under the personal supervision of, a registered optometrist, registered dispensing optician or registered medical practitioner. It was therefore illegal for them to be sold from the website ispyeyes.com to consumers in the UK.
Because the ads implied the sale of zero-powered contact lenses by the advertiser was legal and because the ads encouraged an unsafe practice, we concluded they were in breach of the Code.
The ads breached CAP Code (Edition 12) rules
Marketers must not state or imply that a product can legally be sold if it cannot.
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means. (Misleading advertising) and 4.5 4.5 Marketing communications, especially those addressed to or depicting a child, must not condone or encourage an unsafe practice (see Section 5: Children). (Harm and Offence).
The ads must not appear again the form complained of. We told iSpyEyes 1964262 and Marnie Simpson not to encourage an unsafe practice or to imply that they could legally sell zero powered contact lenses in the UK.