Two Instagram stories from Skinny Tan, seen in July 2020:
a. A reposted Instagram story on the Skinny Tan Instagram account featured a story from influencer Elly Norris @ellykaynorris which included an image of her face and shoulders with the text caption “So impressed with how that went on, honestly like no other fake tan I’ve ever put on, and the smell is just something else. Can’t wait to see what it’s like tomorrow morning [heart-eyes emoji]”.
b. A reposted Instagram story on the Skinny Tan Instagram account, featured a story from @ellykaynorris which included an image of her with the text caption “Haven’t done my make up yet, but absolutely obsessed with the @skinnytanhq coconut serum I used last night. Smells amazing. Can’t wait to get some proper pictures to show you guys!”
IssueThe complainant, who believed the Instagram filter exaggerated the efficacy of the advertised cosmetic product, challenged whether the ads were misleading.
Skinny Tan said that Ms Norris had created the photos and text in the stories at her own will and they had reposted them to their Instagram profile because Ms Norris had been complimentary with her experience of the product. They did not provide Ms Norris money in exchange for the Instagram stories or have any official commercial relationship with her. They said that they did not endorse or encourage the use of filters to exaggerate efficacy and aimed to portray their products in an authentic way. They felt it was appropriate to share Ms Norris’ stories because it was a genuine review of the application experience and they did not think that the content made direct claims about the visual effects of the product. They said they would be more careful about the user-generated content they shared going forward. They did not believe that the filter was intended to mislead or exaggerate the efficacy of the product because it had no relevance to Ms Norris’s comments on the product. Both images had applied the same filter and did not show any differences between them.
Ms Norris said that Skinny Tan had sent the product to her as a form of collaboration but that no payment was received and there was no contractual obligation for her to share the product on her social media. She was not aware of the implications of filter use and her intention was not to mislead. She had applied an Instagram in-app filter called “Perfect Tan” by Bianca Petry to her photos.
The ASA understood that filters were included as an in-app feature on Instagram, and they included ‘beauty filters’ which were designed to enhance a person’s appearance. It was common for such filters to be applied when sharing selfies and videos to social networks. We considered that the use of filters in ads was not inherently problematic, but that advertisers of cosmetic products needed to take particular care not to exaggerate or otherwise misled consumers regarding the product advertised.
Both ads (a) and (b) were reposted by Skinny Tan on their own brand account and because they were incorporated into their own marketing, they fell within the remit of the CAP Code. We also noted that the original story for ad (b) on Ms Norris’ Instagram account included the “paid partnership” tag and the text “#ad” and “#gifted”. We considered that consumers would understand from the ads that Ms Norris had used the product and that her photos reflected the results of the product. We noted that the same filter was applied in both images. However, we considered that consumers were likely to understand from the product name "Skinny Tan” and the claims "So impressed with how that went on, honestly like no other fake tan I’ve ever put on" in ad (a) and “Haven’t done my make up yet, but absolutely obsessed with the @skinnytanhq coconut serum I used last night” in ad (b), particularly in conjunction with the images which showed Ms Norris with a tanned complexion, to mean that applying the product would result in a darker complexion. We therefore considered that consumers would expect to experience similar results to Ms Norris’ appearance in the ads.
We understood that the filter “Perfect Tan” by Bianca Petry resulted in a significantly darker skin tone. The filter’s effects were therefore directly relevant to the intended effects of the product. Because the ads conveyed a tanning effect of the product, we considered that the application of the filter “Perfect Tan” by Bianca Petry to the images was directly relevant to the claimed performance of the product and gave a misleading impression about the performance capabilities of the product.
We therefore concluded that the ads misleadingly exaggerated the results the product could achieve and breached the Code. The ads breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading Advertising) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
The ads must not appear again in the form complained about. We told Skinny Tan and Ms Norris not to apply beauty filters to photos which promoted beauty products if such filters were likely to exaggerate the effect the product was capable of achieving.