Ad description
An Instagram carousel post on British Memes’ page, posted on 17 July 2022, featured an image of a man wearing a hooded sweatshirt with embroidered writing that said, “VALOROUS”. Underneath text stated, “BRITISH MEMES NEW HIGH PERFORMANCE CLOTHING BRAND VALOROUS LAUNCHES FIRST DROP”. The second post in the carousel featured a video that showed clips of people doing sporting activities whilst wearing Valorous clothing. The video ended with the Valorous logo and on-screen text that stated, “VALOROUS FIND IT WITHIN”. The post included the caption “Push your boundaries further than ever before with @valorous_uk. Their first ex… more”. When “more” was clicked it revealed the rest of the caption which continued “[ex]clusive clothing drop is happening right now. Link in bio. A.D”.
Issue
The complainant challenged whether the post was obviously identifiable as a marketing communication.
Response
Valorous Sports Ltd t/a Valorous did not provide a substantive response to the ASA’s enquiries.
British Memes said that they used “A.D” in capital letters as it made clear that the post was an advertisement. They believed that this was commonly used across social media.
They said that the “more” section in the caption was variable and depended on the text size used on a mobile device, the type of mobile device used, or if the ad was being viewed on a laptop. They said that they would reposition “A.D” to earlier in the caption.
Assessment
The ASA was concerned by Valorous Sports Ltd t/a Valorous’s lack of substantive response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule (Unreasonable delay). We reminded them of their responsibility to provide a substantive response to our enquiries and told them to do so in the future.
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. We understood that British Memes had a commercial relationship with Valorous and that social media posts made under that relationship fell within the remit of the CAP Code. We considered that they were therefore jointly responsible for ensuring that marketing activity on British Meme’s account which promoted Valorous was compliant with the CAP Code.
We noted that the post included “A.D” which appeared at the end of the caption. We considered that whilst some consumers may have understood “A.D” in the context of the post to mean that it was an ad, because it was not a clear abbreviation of the word ‘advert’, the label was therefore ambiguous and most consumers were unlikely to interpret it in that way. Therefore, we concluded that “A.D” did not make the post obviously identifiable as a marketing communication.
Notwithstanding that, we understood that since the label appeared at the end of the post caption, it would not have been visible when viewed in-feed and only became visible once users had clicked “more”. For that reason, we concluded that it was insufficiently prominent to ensure that the post was obviously identifiable as an ad.
Whilst we welcomed British Meme’s willingness to reposition the label to earlier in the caption, in the absence of clear and prominent identifiers, we considered that the post was not obviously identifiable as a marketing communication, and therefore breached the Code.
The ad breached CAP Code (Edition 12) rules 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 ad must not appear again in the form complained of. We told Valorous Sports Ltd t/a Valorous and British Memes to ensure their future posts were obviously identifiable as marketing communications, and that identifiers such as “#ad” were clearly and prominently displayed. We referred the matter to CAP’s Compliance team.
