THIS RULING REPLACES THAT PUBLISHED ON 19 SEPTEMBER 2018 FOLLOWING INDEPENDENT REVIEW. THE DECISION HAS BEEN REVERSED, MAKING THE COMPLAINT ‘UPHELD’.
An Instagram post from @dresslikeamum, seen on 28 February 2018, featured an image of two multi-coloured trainers and two lines of the caption stated “Thanks to everyone who has contributed to the ‘big feet / small feet’ chat a few posts back More…”. Once the caption was clicked on, additional text stated “some very interesting points, tips and issues raised And thanks to everyone who has joined the waiting list for these bad boys here are way more names on the list than shoes... (Link to waiting list on @dlam_by_zdp) (Shoes launch early May) #mumshoes #airandgrace #dlambyzdpxairandgrace #dlambyzdp #dresslikeamum”.
The complainant, who understood that the post advertised @dresslikeamum’s shoe range, challenged whether the ad was obviously identifiable as a marketing communication.
Zoe de Pass stated that she had a licensing agreement with Air & Grace and designed and developed a shoe with them. The contract for their agreement did not set out a number of social deliverables; images of the shoes were posted by her own choice. Air & Grace did not have any creative input or control over the posts. Additionally in the particular post complained of, she had linked through to @dlam_by_zdp which was the merchandising page for all of her designs and the hashtags demonstrated that this was a shoe that she had designed with Air & Grace.
Air & Grace stated that they had a design collaboration with Zoe de Pass and the Instagram post referred to the latest range of products from the collaboration. They said that Zoe de Pass had suggested the hashtag in question and was used for all of their marketing activity in order to identify the collaboration. They said that the activity was part of a collaboration and was not an ad. They provided an unsigned copy of a draft licensing agreement which set out the arrangement between both parties in relation to a previous collaboration. They clarified that there was a design royalty associated with the collaboration but there was no editorial control from the brand throughout the process. They said that the first two lines of the post did not market the shoes because it was organic content created by Zoe de Pass with no editorial control from Air and Grace. They did not believe, therefore, that it required the use of #ad in the first two lines of the post.
The ASA first assessed whether the post was a marketing communication and whether it fell within the remit of the CAP Code. Zoe de Pass had collaborated with Air and Grace to design a line of footwear, which was available to buy on their website. The post on Zoe de Pass’ Instagram page included an image of the products that were part of that collaboration. It also referenced a link to the waiting list which consumers could be added to in order to purchase them. Because the content of the post was promoting the shoe collaboration and thus directly connected to the supply of goods, we concluded the post was a marketing communication which fell within the ASA's remit.
We next considered whether the post was obviously identifiable as a marketing communication. We considered that consumers needed to be aware that they were viewing marketing content prior to any engagement with it, meaning that they should know that the post was an ad before clicking to view the full caption. When the post was displayed in a user’s feed on Instagram, the image of the shoes and the first two lines of the caption which stated “Thanks to everyone who has contributed to the ‘big feet / small feet’ chat a few posts back” was displayed. Consumers would have to click on the “more” button to see the full text caption. We considered that based on what the consumer could see prior to engagement with the post, it would not be sufficiently clear to those viewing the post that it was an ad for the shoe collaboration. We therefore concluded that the post was not obviously identifiable as a marketing communication.
The ad breached CAP Code (Edition 12) rule 2.1 (Recognition of marketing communications).
The ad must not appear again in the form complained about. We told Zoe de Pass to ensure that her ads were obviously identifiable as marketing communications prior to engagement.