An Instagram post by Jamie Genevieve, seen in April 2021, featured an image of several make up products branded with the word “VIEVE”.
The desktop version of the post was accompanied by a caption that stated “Modern essentials … The first half of this week has been spent with my @vievemuse team, mapping out the future of VIEVE and what treasures and experiences we’re bringing you next ... It is such a joy to share this journey with all of you and I am eternally grateful for your support, excitement and love. There is nothing more special than our VIEVE community! X”.
The mobile version of the post was accompanied by a caption that stated “Modern essentials … The first half of the week has been spent with my …” with the rest of the caption only viewable when consumers clicked a button labelled “more”.
IssueThe complainant challenged whether the post was obviously identifiable as a marketing communication.
Jamie Genevieve’s representative said that they did not believe the post fell within the scope of the CAP Code, and therefore the remit of the ASA. They confirmed that Jamie Genevieve was paid a salary by VIEVE for her employment by them as a director. However, in their view the post was not an ad for the purposes of the Code, having been made by Jamie Genevieve on her personal Instagram account without remuneration and without editorial control by a third party. They said that while the caption contained a link to the VIEVE brand Instagram account, @vievemuse, that account promoted products, but did not offer them for sale. The image in the post showed product packaging, but not the products themselves, and so in their view the post was not promoting or selling a specific product.
Jamie Genevieve’s representatives said they believed that both iterations of the post were obviously identifiable as marketing communications. They highlighted that the products’ VIEVE branding overlapped with Jamie Genevieve’s surname in a way that they said would have been clear to consumers. The use of the phrases “my @vievemuse team”, “treasures we are bringing” and “our Vieve community” in the desktop post caption made it clear to consumers, both followers and non-followers, that Jamie Genevieve owned the brand. They said that while the caption in the mobile version of the post was shortened, the visible text was preceded by the user name “jamiegenevieve” and also featured the phrase “my @vievemuse team”, which they said would have made it clear to consumers that Jamie Genevieve and the brand were connected. They said that the post would have only been viewable, and served to, followers of Jamie Genevieve’s Instagram account.
The ASA first assessed whether or not the post was a marketing communication and if it fell within the remit of the CAP Code. We understood that Jamie Genevieve was a director of VIEVE, was remunerated as an employee of the business, and therefore had a commercial relationship with the brand. We therefore considered that Jamie Genevieve and the VIEVE brand were synonymous, and that posts made by Jamie Genevieve in her capacity as an employee of the brand constituted marketing communications in non-paid-for space, under the control of VIEVE. The post featured a link to VEIVE’s brand page @vievemuse, which in turn featured a link to a website with a waiting list, where consumers could input their details in order to purchase the products shown in the post. Because the content of the post was under VIEVE’s control, promoted the VIEVE brand and products and was directly connected to the supply of goods, we concluded the post was a marketing communication that fell within the ASA's remit.
We next considered whether the post was obviously identifiable as a marketing communication and made clear its commercial intent.
We understood that the post would have been served to both Jamie Genevieve’s followers, and Instagram users who did not follow Jamie Genevieve, for example through the Instagram Explore function. The image featured in the post depicted a number of boxes, branded with the name “VIEVE”. The caption accompanying the desktop version of the post featured the phrases “my @vievemuse team”, “treasures we are bringing”, “share this journey with all of you” and “our Vieve community”. We considered that the wording – including the references to “my … team”, “share this … with all of you”, and “bringing you” – made it clear that there was a relationship between Jamie Genevieve and the VIEVE brand, and that the post was a marketing communication, even to those who did not follow Jamie Genevieve. We considered that context would have made the commercial intent of the desktop version of the post clear to consumers, and therefore identifiable as a marketing communication.
However, that caption and context were not immediately and fully visible to all consumers viewing the post in-feed on Instagram using a mobile phone. We noted that those consumers would have been presented with the shortened caption “Modern essentials … The first half of the week has been spent with my …” and the image of boxes branded with the name “VEIVE”. We considered that there was no additional context to make the commercial intent of the post clear, such as the desktop version of the post’s references to “my … team”, and “bringing you”. We considered that there was no information provided in the shortened version of the caption making the commercial intent of the post clear to consumers, and that consumers would not have been provided with any additional information until they clicked a button labelled “more” at the end of the caption. We considered that lack of context made it less clear to all consumers viewing the post that Jamie Genevieve had a commercial relationship with VIEVE.
We concluded that the commercial intent behind the post was not made clear upfront and so it was not obviously identifiable as a marketing communication.The ad breached CAP Code (Edition 12) rule 2.1, and 2.3 (Recognition of marketing communications).
The ad must not appear again in the form complained about. We told Jamie Genevieve to ensure that she made clear the commercial intent of her posts in future, and to ensure that her future posts were obviously identifiable as marketing communications, for example by including a clear and prominent identifier, such as “#ad”.