An Instagram post by the makeup blogger Sheikhbeauty, seen on 7 December 2016, promoted tea. Text stated "@flattummytea 20% off guys!!!! If you've been following me you'll know i used this and I genuinely feel less bloated and a flatter tummy ... oh yessss".
The complainant challenged whether the ad was obviously identifiable as a marketing communication.
Nomad Choice Pty Ltd t/a Flat Tummy Tea provided correspondence between Sheikhbeauty and their agent, which they said explained that she must post in accordance with all applicable laws and guidelines. They explained that they had since updated their correspondence to refer explicitly to the requirements of the CAP Code. They also stated that they acted immediately upon notification of the complaint to ensure Sheikhbeauty edited her post to include “#ad” in front of her caption.
Sheikhbeauty did not respond to the ASA’s enquiries.
The ASA understood that Flat Tummy Tea and Sheikhbeauty had entered into a financial agreement, in which Sheikhbeauty was sent the products which she was required to photograph and post on her social media account. While Flat Tummy Tea did not provide specific wording or copy for Sheikhbeauty’s social media posts, we noted that the agreement required that the content should be based on key messages – for example, concerning Flat Tummy Tea’s 20% discount offer that ran during Black Friday and Cyber Monday. Further, we noted from the correspondence provided that Flat Tummy Tea had instructed Sheikhbeauty to upload the posts on certain dates and at certain times. In conjunction with the payment arrangement between the two parties, we considered that the various aspects of the agreement between Flat Tummy Tea and Sheikhbeauty meant that Flat Tummy Tea had sufficient control over the content for the post to be considered a marketing communication falling within the remit of the CAP Code.
We noted that the post included the handle @flattummytea and a reference to the saving that could be made when buying the advertiser’s products. The text also referred to Sheikhbeauty’s own personal experience in using the products. We also noted that the short still video that accompanied the text was a ‘selfie’ of Sheikhbeauty holding a selection of the products in such a way that the labelling was clearly visible and the products were the primary focus. We considered that distinguished the image from the majority of those she posted, which focused on her face, her makeup and styling. While the post differed in some respects from her usual posts and contained some elements that indicated there might be a commercial relationship between Sheikhbeauty and Flat Tummy Tea, we did not consider that the content or context of the post made clear that it was advertising, as opposed to, for example, genuinely independent editorial content or sponsored editorial content. Therefore, in the absence of a clear identifier, such as “#ad”, we concluded that the post was not obviously identifiable as a marketing communication and that it breached the Code.
The ad breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.4 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 ad must not appear again in its current form. We welcomed the actions Flat Tummy Tea had taken following notification of the complaint. We reiterated to them and to Sheikhbeauty their responsibility to ensure that all of the ads they produced were obviously identifiable as marketing communications in future by including, for example, an identifier such as “#ad”.