A video post on Olivia Buckland's Instagram page, @oliviadbuck, seen on 10 May 2018, showed her discussing and applying eye shadow from the W7 Life’s A Peach eye colour palette. Text on the post stated “Peach PERFECTION … I have been trying to find an affordable palette with these kind of shades with good pigmentation for a while so I was so happy when @w7makeupuk were bringing this beaut out! It’s £9.95 from www.w7cosmetics.co.uk as of RIGHT NOW - can’t wait to see what looks you guys create #BucksBeauty #W7”.
The complainant challenged whether the post was obviously identifiable as a marketing communication.
Warpaint Cosmetics (2014) Ltd t/a W7 and Olivia Buckland, via her agent, provided a joint response. They confirmed that Ms Buckland was a brand ambassador for W7. They stated Ms Buckland was not paid by the brand specifically to post on social media about their products, nor did the brand specify or instruct Ms Buckland in regards to her social media content. They confirmed that Ms Buckland was paid to undertake photoshoots, appearances and attend press days as part of her ambassadorship. They said the post in question was not paid for or instructed by W7; it was a separate ‘beauty blog style’ post to any agreement that Ms Olivia had with the brand. They believed that Ms Buckland’s ambassadorship with W7 was a well-known fact to her followers. They stated that she had undertaken a number of press interviews, both in print and online, as well as previously posting two videos on Instagram, about her ambassadorship. They also said the biography on Ms Buckland’s Instagram profile clearly stated that Ms Buckland was an ambassador for W7. They believed that Ms Buckland’s professional relationship with W7 was sufficiently obvious and that the Instagram post in question was not specifically an ad. However, they were willing to make changes to the hashtags on any similar posts in future.
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 context. In addition, marketers and publishers must make clear that advertorials were marketing communications.
The ASA understood that there was a financial agreement in place between W7 and Olivia Buckland for her role as ‘Brand Ambassador’ for W7. We understood that under the agreement, Ms Buckland was contracted to participate a number of photoshoots and press days and she would be paid in return. Whilst the written contractual agreement did not make specific stipulations about the content published by Ms Buckland on her social media profiles, the contract required Ms Buckland to promote the brand and the products in a positive light at all times. Because that would in effect restrict aspects of Ms Buckland’s control of her social media content, we considered that W7 had sufficient control over the content for the Instagram post in question to be considered a marketing communication. The post, therefore, fell within the remit of the CAP Code.
We noted that at the time the ad was seen, the ‘bio’ field on Ms Buckland’s Instagram profile stated “Ambassador for W7 Cosmetics…”, and that she published two posts in February announcing her brand ambassadorship. Because of that, we acknowledged that followers of Ms Buckland’s Instagram profile were likely to be aware that there was a commercial relationship between Ms Buckland and W7, and her role to promote the products. However, we understood that, because Ms Buckland’s profile was visible to the public, any posts she published could appear in search results and those posts could be viewed in isolation to her profile. That meant Instagram users, who might not be followers of Ms Buckland’s profile, would be able to view the post without having seen her profile and the statement about her brand ambassadorship. Because of that, we considered that the post would need to be obviously identifiable as a marketing communication.
Whilst the post included the handle @w7makeupuk and the hashtag “#W7”, we did not consider that it contained any obvious indications of a commercial relationship. The post referred to Ms Buckland’s opinion of and experience in using the product, and featured a demonstration of her applying the eyeshadows. Whilst the overall tone of the post was positive, we noted that the different aspects of the post were not atypical of makeup reviews or product demonstrations commonly found on social media and video-sharing platforms. We did not consider the content of the post made clear that 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.
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).
The ad must not appear again in the form complained of. We told W7 and Olivia Buckland to ensure that in future, their ads were obviously identifiable as marketing communications, for example, by including a clear and prominent identifier such as “#ad”.