A Snapchat snap by marniegshore, seen on 20 June 2017, showed an image of Marnie Simpson wearing grey contact lenses. Text on the snap stated “[Heart emoji] mrs grey coming soon”.
The complainant, who understood the snap advertised marniegshore’s contact lens range, challenged whether the snap was obviously identifiable as a marketing communication.
Unleashed PR Ltd t/a I Spy Eyes said they were a celebrity management agency and managed Marnie Simpson who appeared in Geordie Shore on MTV, amongst other shows. They also sold a range of coloured contact lenses called I Spy Eyes which was branded as “by Marnie Simpson”. They said Marnie posted about the lenses and made it clear she was advertising the website for the lenses by pointing people to 'shop' or 'swipe up to buy' or by posting comments in videos and stating that this was “her own lens range”. They said this particular post was about a new lens colour, Mrs Grey, which was “coming soon”. They pointed out Marnie did not explicitly refer to lenses nor did she mention I Spy Eyes or the website. They also said that most people wouldn't have known the snap was promoting a product and if they did, consumers wouldn't have known what that snap was for or where to go to buy it. Therefore they did not believe the snap was misleading to the consumer, as the product wasn't available to buy. Marnie had posted the snap in excitement that she had a new colour lens coming out.
They said the only words mentioned were 'Mrs Grey, Coming Soon' with a picture of Marnie, and the snap did not contain links, did not refer to a company or brand names, and as the product was not available to buy then, they did not agree that could be classed as an ad for the brand. However, they said if the name “I Spy Eyes” or “contact lenses” had been mentioned, without the snap making it obvious it was Marnie Simpson’s product and that she was advertising her products, then they would agree that it might have not been clear that it was a marketing communication.
They also said the word ‘ad’ or ‘#ad’ was not placed on the snap which it should have been. They said on future snaps which did not mention a company name or website, they would make sure that it was clear it was an ad.
The ASA considered first whether the snap was a marketing communication and therefore whether it fell within our remit. We noted that the snap provided limited detail about the product or where it might be bought. However, we also noted the snap featured Marnie wearing grey contact lenses, the name of the product and the terms “coming soon”, which we considered implied the purpose of the snap was to promote a product. Because, the content of the snap was promoting I Spy Eyes merchandise and thus directly connected to the supply of goods, we concluded the snap was a marketing communication which fell within the ASA's remit. Further we considered that it was I Spy Eyes’ responsibility to ensure this promotional activity was compliant with the CAP Code.
We noted the Code did not just require ads to be identifiable as marketing communications but that they must be obviously identifiable as such. The snap was featured as part of Marnie Simpson’s snapstory. We considered the snap was somewhat distinguishable from her usual snaps which typically featured content from her personal/social life. However, we considered the snap to be insufficiently distinguishable from the rest of her Snapchat content given that it lacked any content or context that made clear it was advertising. Further, although we noted that some of Marnie Simpson’s followers would be aware of her own brand product, we considered that it was not clear from the snap itself that Marnie Simpson was promoting her own product and therefore it would not be clear to Snapchat users, particularly to those new to Snapchat, that the snap concerned was a marketing communication.
For these reasons, we considered the snap was not obviously identifiable as a marketing communication. We concluded the snap breached the Code.
The ad 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 ad must not appear again in its current form. We welcomed I Spy Eyes’ willingness to ensure they would use “#ad” in future. We reiterated their responsibility to ensure that all of the ads they produced were obviously identifiable as marketing communications in future.