The ASA has upheld yet another complaint in relation to a social media post by an online influencer that was not “obviously identifiable” as a marketing communication.
Luke Mabbott is a former “Love Island” contestant and a paid influencer for Boohoo.com UK Ltd. He posted a TikTok video in which he wore two outfits. A caption alongside the video said “Which look do you prefer” and “Outfit from @boohooman #boohooman”.
Rule 2.1 of the CAP Code requires that “Marketing communications must be obviously identifiable as such.” Rule 2.4 says that “Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them ‘advertisement feature’”. These rules incorporate into the CAP Code the ban, set out in the Consumer Protection from Unfair Trading Regulations 2008, on “Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial).”
To comply with these rules, the ASA and the CMA recommend that influencers’ social media posts be marked “ad”, “advert”, “advertising”, “advertisement” or “advertisement feature”, with or without a hashtag. In this case Mr Mabbott made no express disclosure of any kind. It was therefore unsurprising that the ASA found that the post was not obviously identifiable as a marketing communication, and therefore breached the CAP Code.
Neither Boohoo.com nor Mr Mabbott appear to have mounted any real defence to the complaint. Boohoo.com said that their agreement with Mr Mabbott included an obligation to ensure all social media posts were obviously identifiable as an ad. Upon notice of the complaint, they reminded Mr Mabbott of this, and said that future posts would be compliant. Mr Mabbott said that the absence of an appropriate label was an oversight and that he would make future posts obviously identifiable.
Given that neither Boohoo.com nor the influencer appears to have contested the complaint, this complaint could have been deal with by way of the ASA’s informal resolution process, under which no details of the complaint are published. It is unclear why that was not used here, but it is possible that the ASA is losing its patience in the face of numerous similar complaints, and decided that it would not let the advertisers off with an informal resolution in this case.
It increasingly appears that online retailers and influencers regard upheld ASA complaints as a cost of doing business. However, advertisers and influencers should avoid complacency. In 2018-2019 the CMA investigated the sector, and the investigation resulted in a number of prominent influencers (though not Mr Mabbott) giving formal undertakings under the Enterprise Act 2002 to comply with the rules. The CMA will be keeping a close eye on the sector, and further enforcement action remains a possibility.
For the moment, advertisers should take care to ensure that their influencer contracts place a clear obligation on the influencer to disclose their relationship with the brand, and should police all social media posts by their contracted influencers to ensure that they are compliant. Influencers should make the nature of their advertising posts clear by using #ad or one of the other labels noted above.