Two paid-for posts for Card Factory appearing on Stacey Solomon's Instagram story, seen in November 2019:
a. The first paid-for post for Card Factory featured the caption “SWIPE UP … For a link to @cardfactoryplc Online Christmas card service”. The word “AD” appeared in the top right-hand corner of the post in white lettering on a slightly off-white background.
b. The second paid-for post for Card Factory featured the caption “SWIPE UP … We did our with @cardfactoryplc I can’t wait to get them and show you our card … If you fancy making one I’ve put a link on here to them”. The word “AD” appeared in the top left-hand corner of the post in white lettering on a slightly off-white background.
IssueThe complainants, who understood that the ads contained affiliate links, challenged whether the posts were obviously identifiable as a marketing communication and did not make clear their commercial intent.
Sportswift Ltd t/a Card Factory said that they had an agreement with Stacey Solomon under which she was obliged to produce two pre-approved Instagram story posts for their customisable Christmas card range. As part of that campaign, Ms Solomon was provided with affiliate links that were included in the approved posts. Card Factory said that the later posts were created without their oversight and approval and did not form part of Ms Solomon’s contractual obligations to them.
Stacey Solomon’s agent said that they understood the posts fell outside of Ms Solomon’s contractual obligations to Card Factory. However, they acknowledged that the label “AD” had not been sufficiently prominent to make the nature of the relationship clear. They confirmed Ms Solomon would have received a small amount of commission for purchases made through any affiliate links in the posts.
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 had been a financial agreement in place between Card Factory and Ms Solomon and that the posts under investigation were not created as part of that agreement and had not been approved by Card Factory as part of that ad campaign. However, we understood that the posts were made after that agreement had been put in place, and so considered they were likely to have contained the affiliate links used in the approved posts.
We considered Ms Solomon would have received commission for any sales generated through the use of the affiliate links by consumers. Those links were therefore directly connected with the supply of goods provided by Card Factory, and so the posts were ads for the purposes of the Code. The affiliate links appeared alongside exhortations from Ms Solomon encouraging consumers to use Card Factory’s online Christmas card service, from which she stood to gain commission, so we considered that the commercial nature of the affiliate content should have been made clear prior to them clicking through to the content.
We noted both posts featured the label “AD”. However, that label appeared in white lettering against a white background. We considered that presentation meant the labels were unclear and lacking in prominence, since they blended-in with the background and were obscured as a result. We considered the labels would have been significantly more prominent if they had been written in a colour, or had been placed inside a box, that contrasted with the background. In the absence of clear and prominent identifiers, we concluded the story posts were not obviously identifiable as marketing communications and did not make clear their commercial intent in breach of 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 Sportswift Ltd t/a Card Factory and Stacey Solomon to ensure that their future ads were obviously identifiable as marketing communications, and that identifiers such as #ad should be clearly and prominently displayed.