Ad description
An Instagram post and story from Myleene Klass’ account:
a. The post, seen on 16 May 2022, featured an image of Myleene Klass wearing pink trainers and a combat print cap. Text underneath stated, “… myleeneklass Pink to make the girls wink”. Below text stated, “@skechers_uk” accompanied by a trainer and cap emoji.
b. The Instagram story, seen on 14 June 2022, featured an image of Myleene and another woman wearing pink plastic clogs. Text stated, “Two Of A Kind We’re Twins”. Text below the image stated, “@the_mutha_ship @skechers_uk didn’t even plan it”.
Issue
The complainant challenged whether the posts were obviously identifiable as marketing communications.
Response
Skechers UK t/a Skechers said they did have a contractual relationship with Myleene Klass and that the posts were part of that relationship. They said the contract between them required that Ms Klass complied with all applicable laws, including advertising laws.
Skechers said they had asked Ms Klass to either edit the posts so that they made clear to consumers the relationship between them, or to take the posts down, as well as ensure that all future posts were clearly labelled. They said they monitored the social media posts of their advertisers, but given the number of posts and the unpredictable posting schedule that it was not possible to catch every mistake immediately.
Myleene Klass’ representatives said there was some confusion as to what was and was not an ad, but she had added “Ad” to all her posts moving forward and would continue to do so.
Assessment
Upheld
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 there was a commercial relationship between Skechers and Ms Klass and the posts were made under that agreement. We also considered that in requiring Ms Klass to make amendments to her posts, Skechers demonstrated that they had sufficient control over the content of the posts in conjunction with a payment arrangement, for them to be considered marketing communications falling within the remit of the CAP Code. We considered that they were therefore jointly responsible for ensuring that marketing activity conducted on Ms Klass’ social media account promoting Skechers was compliant with the CAP Code.
We next considered whether the posts were obviously identifiable as marketing communications and made clear their commercial intent. Ad (a) featured an image of Ms Klass wearing pink trainers and a cap, along with cap and trainer emojis and text which stated, “@skechers_uk”. Ad (b) also featured Myleene wearing Skechers footwear, with the same text. We noted that the posts appeared on Ms Klass’ account and did not contain any indication that they were marketing communications. We considered that the inclusion of “@skechers_uk” was insufficient to ensure the posts were obviously identifiable as ads or to make clear that there was a commercial relationship between Skechers and Ms Klass.
We welcomed the assurances from both Skechers and Ms Klass that they would ensure that similar posts in future would be clearly labelled. However, because at the time of the complaint, the posts did not feature any label identifying them as marketing communications, we concluded they were not obviously identifiable and breached the Code.
Ads (a) and (b) breached CAP Code (Edition 12) rule 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).
Action
The ads must not appear again in the forms complained of. We told Skechers UK and Myleene Klass to ensure that their future ads were obviously identifiable as marketing communications and the commercial intent was made clear, for example, by including a clear and prominent identifier such as “#ad”.
