Summary of Council decision:
Four issues were investigated, all of which were Upheld.
Two Instagram posts and a website for SkinnyJab Ltd, a weight loss injection provider:
a. An Instagram story seen on Gemma Collins’ page in April 2020, featured a video, in which Gemma Collins stated “Working on my summer body whilst in isolation … and this really helps me … this is what you get when you’ve ordered from SkinnyJab … and it does help, it really does help … cannot wait to be out of lockdown in a nice summer dress.”
A booklet titled “Your SkinnyJab Guide” was featured and further text on it included “Helping You Get The Most Out Of Your SkinnyJab” and “Includes aftercare, support, top tips, diet programme & SkinnyFit work outs!” alongside the SkinnyJab logo. Next to the booklet was a box with the label “OZEMPIC 1 mg solution for injection in pre-filled pen” and “semaglutide”.
SkinnyJab’s Instagram account was also tagged with the text “@skinnyjab”.
b. An Instagram post on SkinnyJab’s account, seen in February 2020, featured the SkinnyJab logo and a cartoon of a slim woman in a vest top and shorts, holding a water bottle and measuring tape around her waist. Two thought bubbles containing a cupcake and a salad appeared beside her head. The caption stated “Tired of craving and unable to control bad eating habits? SkinnyJab is here to help! [smiley face emoji]”.
Further text featured several hashtags including “#weightlossmotivation”, and “#weightlosstransformation”.
c. The website www.skinnyjab.co.uk, seen in May 2020, featured a “Price & Information” page, which included the text “Average weight loss is 12-20lbs within the first 4 week course”.
The ASA challenged whether:
1. ad (a) was obviously identifiable as a marketing communication;
2. ad (a) breached the Code because it promoted a prescription-only medicine;
3. ad (b) was irresponsible because it implied that the product could be used by people who were not overweight; and
4. the claim “Average weight loss is 12-20lbs within the first 4 week course” in ad (c) complied with the Code.
1. SkinnyJab Ltd said that their contract with Ms Collins expired in December 2019 and had not been renewed due to COVID-19 and lockdown. They said that it had been agreed with Ms Collins’ agent that they would resume their working relationship when restrictions were lifted, and that whatever Gemma said or did during this period was nothing to do with SkinnyJab. They said that they woulduse “#ad” in the future. Ms Collins, via her agent said that she had been a brand ambassador for SkinnyJab but because of the COVID-19 pandemic they ceased their agreement with Ms Collins in March 2020 and resumed the relationship again on 1 June 2020.
They provided a copy of a text message from SkinnyJab which they said showed that Ms Collins had not been paid for the post. They said that Ms Collins posted the Instagram story to support SkinnyJab as a thank you with no financial incentive attached to it. She did this in a private capacity and the post was not seen by SkinnyJab before it was posted.
2. SkinnyJab said they were strict about not advertising names of prescription-only medications that they used and had removed all names of prescription-only medicines from their website with the advice from the MHRA. SkinnyJab said that had they been aware of Ms Collins promoting a prescription-only medication, they would have stopped it. They said that they had a CQC registered prescriber as part of their team and that their clinical staff were qualified and registered prescribers with the Nursing and Midwifery Council. They said that patients were assessed by a prescribing clinician who prescribed the medication to the patient. They said that their website was registered with the MHRA’s online medicines seller registry.
3. SkinnyJab said that the ad was targeted at those who were overweight and there was no reference to anyone who was underweight. They said that images of slim models were often used for weight-loss products. They said that they had not been approached by any underweight members of the public and that all patients went through a clinical health screening with high standards of safety for patient care. They said their intention was not to encourage underweight individuals to use their product. SkinnyJab said that they were a weight loss and healthy lifestyle brand, not only a weight-loss injection provider, and that prescription-only medications were used as part of their programmes.
4. SkinnyJab said that the average weight loss for their patients was between 12 and 20lbs in the first four weeks and that this calculation had been worked out from their patient data. They said they were unaware that they could not advertise this, and that ads making this claim would either be amended or removed.
The CAP Code stated that marketing communications must be obviously identifiable as such, and that they made clear their commercial intent, if that was not obvious from the context. In addition, it required that marketers and publishers must make clear that advertorials were marketing communications. The ASA understood that there had been a financial agreement in place between SkinnyJab Ltd and Ms Collins under which she would promote SkinnyJab Ltd’s products as their brand ambassador. We understood that SkinnyJab and Ms Collins both said that their relationship had been temporarily paused either in December 2.1 2.1 Advertisements must be obviously distinguishable from editorial content, especially if they use a situation, performance or style reminiscent of editorial content, to prevent the audience being confused between the two. The audience should quickly recognise the message as an advertisement. or March 2020 with the expectation that it would resume in due course which it duly did in June 2020.
SkinnyJab argued that the Instagram story complained about was not advertising because it did not arise from Ms Collins’ contractual obligations as their contractual relationship had ceased. We noted, however, that we had seen nothing from either SkinnyJab or Ms Collins which showed the nature and limits of Ms Collins’ contractual obligations for example, the contract itself. We noted that Ms Collins’ agent had provided a single message in a WhatsApp message chain that appeared to be a conversation in which a pause in payments was being considered.
We considered, however, that whether or not Ms Collins had been paid at the time of, or for, the post was not the only factor in whether we should conclude that it was an ad. For example, we noted that, during the time the relationship was claimed to be paused, Ms Collins was featured on SkinnyJab’s website where it stated, “Gemma Collins Launching The Essex Branch” and quoted Ms Collins stating, “Caroline Balazs & Her Clinical Team Have Helped Me Find A Cure To My Weight Loss. I Lost 3 Stone With SkinnyJab. The Support & Aftercare Has Been Unreal. Anyone Who Is Struggling To Lose Weight, Get In Touch With SkinnyJab, You Will NOT Regret It”. We further noted that media reports had also covered Instagram stories posted by Ms Collins as a SkinnyJab brand ambassador during the period that SkinnyJab had stated that their commercial relationship with Ms Collins had ceased. We had also not seen anything from SkinnyJab which, for example, directed Ms Collins on how to limit or change her social media activity in relation to SkinnyJab during that pause. For those reasons we considered that the relationship between Ms Collins and SkinnyJab was, for practical purposes, ongoing at the time the ad was placed and that the ad would need to be obviously identifiable as a marketing communication. We did not consider that the story contained any obvious indications of a commercial relationship.
The story was a video of Ms Collins, in which she stated, “Working on my summer body whilst in isolation … and this really helps me … this is what you get when you’ve ordered from SkinnyJab … and it does help, it really does help … cannot wait to be out of lockdown in a nice summer dress” and featured a weight-loss injection. We noted that she tagged @SkinnyJab to the story, but we did not consider the content of the post made clear whether it was advertising, as opposed to, for example, genuinely independent 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.
On that point, the ad breached CAP Code (Edition 12) rule 2.1 2.1 Advertisements must be obviously distinguishable from editorial content, especially if they use a situation, performance or style reminiscent of editorial content, to prevent the audience being confused between the two. The audience should quickly recognise the message as an advertisement. (Recognition of marketing communications).
The advertising of prescription-only medicines to the general public was prohibited by the Human Medicines Regulations 2.1 2.1 Advertisements must be obviously distinguishable from editorial content, especially if they use a situation, performance or style reminiscent of editorial content, to prevent the audience being confused between the two. The audience should quickly recognise the message as an advertisement. (HMR) and that was reflected in CAP Code rule 12.12 12.12 Advertisements for weight-control or slimming products must not suggest or imply that to be underweight is acceptable or desirable. If they are used, testimonials or case histories must not refer to subjects who are or seem to be underweight. Underweight, for the purpose of this rule, means a Body Mass Index below 20. We understood that injectable Semaglutide (brand name Ozempic) was a prescription-only medicine. The ad featured a box with the label “OZEMPIC 1 mg solution for injection in pre-filled pen” and “Semaglutide” and was visible to anyone who visited Ms Collins’ Instagram profile. Because the ad promoted prescription-only medicines to the general public, we concluded that it breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 12.12 12.12 Advertisements for weight-control or slimming products must not suggest or imply that to be underweight is acceptable or desirable. If they are used, testimonials or case histories must not refer to subjects who are or seem to be underweight. Underweight, for the purpose of this rule, means a Body Mass Index below 20. (Medicines, medical devices, health-related products and beauty products).
The CAP Code required marketers to ensure advertising was prepared with a sense of responsibility to consumers and to society. We considered that the cartoon of a slim woman, together with the claim “Tired of craving and unable to control bad eating habits? SkinnyJab is here to help” implied that the injections offered by SkinnyJab could be used to help prevent cravings in people who were not overweight. We considered that the message that people who were not overweight would benefit from weight loss treatment was irresponsible. We understood that Semaglutide was indicated for the treatment of adults with insufficiently controlled type 2 diabetes mellitus as an adjunct to diet and exercise, according to the European Medicines Agency. The ad therefore suggested uses outside the licenced indications listed in the Summary of Product Characteristics for that medicine.
We concluded that the ad was socially irresponsible and breached the Code. On that point, the ad breached CAP Code (Edition 12) 1.3 1.3 Advertisements must comply with the law and broadcasters must make that a condition of acceptance. (Social responsibility).
The CAP Code stated that marketing communications must not contain claims that people can lose precise amounts of weight within a stated period. SkinnyJab said that the average weight loss for their patients was between 12 and 20lbs in the first four weeks. We considered that the claim “Average weight loss is 12-20lbs within the first 4 week course” would be interpreted by consumers to mean that they could lose between 12 and 20lbs within the stated period of four weeks. While we welcomed SkinnyJab’s willingness to amend their ad, we concluded that the ad breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 13.9 13.9 Television only – Promotional offers must be used with a due sense of responsibility. They may not be used in HFSS product advertisements targeted directly at pre-school or primary school children. (Weight control and slimming)
The ads must not appear again in their current form. We told SkinnyJab Ltd to ensure they did not promote prescription-only medicines to the general public. We told SkinnyJab Ltd and Gemma Collins to ensure that their ads were obviously identifiable as marketing communications for example, by including a clear and prominent identifier such as #ad.
We further told SkinnyJab to ensure their ads did not irresponsibly imply that it could be used by people who were not overweight and suggest uses outside the summary of product characteristics for a licenced medicine. We also told them not to make claims that people could lose a precise amount of weight within a stated period.