On 2 January 2018, the CAP Code was amended to include a new rule 4.8 (Harm and offence) which stated "Marketing communications must not portray or represent anyone who is, or appears to be, under 18 in a sexual way. However, this rule does not apply to marketing communications whose principal function is to promote the welfare of, or prevent harm to, under-18s, provided any sexual portrayal or representation is not excessive". As that rule was not in force at the time the ad was seen, it was not included as part of the investigation. At the time the ad was seen, the CAP Code did not contain a specific rule prohibiting the portrayal of children in a sexual way, but the ASA Council was able to uphold complaints about that issue under general rules regarding responsible advertising. For the purposes of the Code, a child was defined as someone under 16.
A pre-roll ad on YouTube for a make-up brand, seen in October 2017, featured a female model interacting with various oversized replicas of cosmetic products.
The complainant, who believed the model featured appeared to be a child and had been portrayed in a sexualised way, challenged whether it was irresponsible.
Nanda Company Ltd t/a Stylenanda did not respond to the ASA's enquiries.
The ASA was concerned by Stylenanda's lack of response and apparent disregard for the Code, which was a breach of CAP Code 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 them of their responsibility to provide a response to our enquiries and told them to do so in future.
We considered that the model had a smooth, flawless complexion, petite face, large ‘doe eyes’, small button nose, thick eyebrows and a slender frame and we considered that gave her a youthful appearance. We also noted that some of the styling was associated with youthfulness and children. In particular, the model appeared to have been given freckles using make-up; in one scene she was wearing a baby bonnet; and in another scene she was wearing oversized glasses. She was also shown interacting with oversized make-up props, which added to the impression that she was young and child-like. In some scenes she was also seen behaving in a juvenile and playful way – for example, sitting on a prop whilst swinging her legs up and down and lying on her front with her head resting on her arms, whilst gazing up to the sky as though she was daydreaming and with her legs crossed behind her. In another scene she was seen cuddling one of the props and in another, running whilst rolling the same prop along as though it was a wheel. She was also seen peeking out from behind a giant make-up brush in another scene. For all those reasons, we considered that the model featured in the ad appeared to be under 16.
We also considered the model was portrayed in a sexualised way. In particular, we noted in certain scenes she was shown gazing flirtatiously at the camera. For example, in one scene a close-up of her face focused on her slowly opening her eyes with her mouth slightly open. In another scene she was shown closing her eyes, tilting her head back and lightly tossing her hair behind her in a sultry and flirtatious manner. She was also shown wearing revealing outfits, for example, a crop top which exposed her midriff and, in particular, denim shorts with white stockings that emphasised her legs. Moreover, in that scene, she was lying on her back with her legs up against one of the props, crossing and uncrossing her legs in what we considered was a sexualised manner.
We therefore concluded that the ad was irresponsible and breached the Code, because the model in the ad appeared to be a child and was portrayed in a sexualised way.
The ad breached CAP Code (Edition 12) rule 1.3 1.3 Marketing communications must be prepared with a sense of responsibility to consumers and to society. (Responsible advertising).
The ad must not appear again in its current form. We told Stylenanda to ensure that in future their ads did not portray someone who appeared to be a child in a sexualised way.