Three Instagram stories posted by the influencer Jake Quickenden, promoting Snuggy hooded blankets that were seen on 16 December 2021:
a. The story featured an image of the influencer wearing a Snuggy, a link to the Snuggy website and a discount code “JAKE25 FOR 25% OFF”.
b. The story featured an image of the influencer wearing a Snuggy.
c. The story featured an image of the influencer and members of his family wearing Snuggies. Text stated “BACK WITH THE FAM FOR THE NIGHT”.
IssueThe complainant challenged whether ads (a), (b) and (c) were obviously identifiable as marketing communications.
Leisure Wear Ltd confirmed that the posts were part of a commercial collaboration between Snuggy and Mr Quickenden. They said that, because of an oversight, the second story frame had not been labelled as an ad but they understood that the first frame and the main story grid had been labelled. They apologised and said they would take steps to ensure it would not happen again.
Mr Quickenden did not respond to the ASA’s enquiries.
The ASA was concerned by Jake Quickenden’s lack of response and apparent disregard for the Code, and ruled that he had breached CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded him of his responsibility to respond promptly to our enquiries and told him to do so in future.
The CAP Code required marketing communications to 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 Mr Quickenden had a commercial relationship with SnuggyUK and that social media posts made under that relationship fell within the remit of the CAP Code. We considered that they were therefore jointly responsible for ensuring that marketing activity on Mr Quickenden’s account promoting SnuggyUK was compliant with the CAP Code.
We noted that, although Leisure Wear Ltd said that the first story post in the series had been labelled as an ad, but that due to an oversight, the subsequent story posts, including ads (a), (b) and (c), had not. They had not, however, sent evidence of this. We considered that the mechanics of Instagram stories meant that users might not view a story in its entirety, for example if they leave and then return to the app.
We assessed the posts as they would have appeared in-feed on Instagram stories and considered that there was nothing in their content, for example a prominent disclosure label, such as “#ad”, that made clear to those viewing the posts that they were ads. We noted that ad (b) included a discount code and a link to SnuggyUK’s website, but we did not consider that was sufficient to make clear to Instagram users that the post was advertising.
We therefore concluded that the posts were not obviously identifiable as marketing communications and breached the Code.
The ads breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. 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. and 2.4 2.4 Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature". (Recognition of marketing communications ).
The ads must not appear again in the form complained about. We told Leisure Wear Ltd and Jake Quickenden to ensure that all ads were obviously identifiable as marketing communications, for example by including a clear and prominent identifier, such as “#ad” on each post. We referred the matter to CAP’s Compliance team.