An Instagram story seen on Louise Thompson’s page on 3 May 2018 included a video of her showing a brush product with an on-screen caption which stated “Obsessed with my glowspin! Swipe up for $100 off using my code ‘louiseglow Swipe up awesome @vanityplanetstore”.
The complainant challenged whether the ad was obviously identifiable as a marketing communication.
Vanity Planet said that Louise Thompson had been contracted through an agency. They said that it was not their intention to violate any advertising standards and that they had reworded their contracts for UK consumers to state that the influencer should ensure that they meet UK advertising standards.
Louise Thompson said that she had been paid a fee to promote the brand Vanity Planet but that there was no formal written contract in relation to the post. She explained that there was no explicit obligation required by Vanity Planet to include #ad or any other qualifier to the story post.
She said that she was unaware of the need to add “#ad” to her story posts as she considered that her audience would have been aware of the fact that she would be receiving a benefit in exchange for the post given the inclusion of the promo code. She further explained that she had understood there was a need to make it clear on the static posts which appeared on her Instagram grid, but had not appreciated that the obligation extended to the stories function. She apologised for the omission and said that in the future she would ensure that her posts on Instagram stories were appropriately labelled.
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. Furthermore, marketers and publishers must make clear that advertorials were marketing communications. We considered that because the post was created by Louise Thompson for Vanity Planet, both parties were jointly responsible for ensuring that promotional activity conducted on Vanity Planet’s behalf was compliant with the CAP Code.
The post was made up of three videos which appeared in the “stories” part of the Instagram platform. These were posts which only appeared on a user’s page for a maximum of 24 hours. The final video showed the brush product in its box and the caption on screen “Obsessed with my glowspin! Swipe up for $100 off using my code ‘louiseglow Swipe up awesome @vanityplanetstore”. We understood that when you swiped up, consumers were directed to the Vanity Planet page website within the Instagram app. While the post contained some elements that indicated there might be a commercial relationship between Louise Thompson and Vanity Planet, we considered that the content and context of the post did not make clear that it was advertising, as opposed to, for example, genuinely independent editorial content or sponsored 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.
We welcomed the assurances we received from both parties that they will ensure that future advertising posts on Instagram stories were properly labelled.
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).
We told Vanity Planet and Louise Thompson to ensure that in the future their ads and affiliate posts were obviously identifiable as marketing communications, for example, by including a clear identifier such as “#ad”.