A TikTok post on The Wave House’s account, @thewavehouse, seen on 25 October 2020, featured two men wearing leather jackets and sitting in convertible cars. Two women were then shown wearing pink jackets and talking to the men. The back of the women’s pink jackets were then shown with embroidered writing that said “Pretty Little Thing”. The next clip showed the women waving a racing flag down to signal the start of a race and the men in the cars were shown driving away. The description of the video stated “Who do you think won this race? @prettylittlething #grease #fyp”.
IssueThe complainant challenged whether the post was obviously identifiable as a marketing communication.
Prettylittlething.com Ltd confirmed that The Wave House was engaged under a contractual agreement. They explained that the agreement contained express obligations in regards to compliance with the CAP Code. They also stated that the agreement expressly stated that all social media posts in connection with the agreement were obviously identifiable as an ad by using the #AD disclosure.
Prettylittlething.com Ltd also confirmed that The Wave House were unable to update the post to include the AD disclosure and so the whole post was removed. The Wave House (Eloise Fouladgar, Jimbo H, Kate Elisabeth, Millie T, Carmie Sellitto and Spencer Elmer) said that the post was intended as an advertisement in partnership with Prettylittlething.com Ltd. They said that the ad was posted in error without the required ad label included in the post. The Wave House stated that had they noticed the error themselves, they would have taken measures to rectify it and repost the ad in accordance with the CAP Code.
The CAP Code stated that marketing communications must 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 the post was as part of a commercial partnership between The Wave House and Prettylittlething.com Ltd. The post depicted embroidered jackets which stated “Pretty Little Thing” and Prettylittlething.com Ltd were tagged in the post. However, we considered that there was nothing in the content of the TikTok post, such as “#ad” placed upfront, that made clear to consumers that it was an ad. We therefore concluded that the post was not obviously identifiable as a marketing communication and as such breached the Code.
The ads breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 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. (Recognition of marketing communications).
The ads must not appear again in the form complained about. We told Prettylittlething.com Ltd and The Wave House to ensure that their future ads were obviously identifiable as marketing communications, and that identifiers such as #ad were clearly and prominently displayed.