Health & Beauty

Two images were posted to the influencer’s Instagram story, one of which depicted her applying make-up with a contour brush, the other of which featured her smiling at the camera, showing the results of using the brush.

Onscreen text on both images stated, “Helping me look alive 😜” and “The best contour brush I ever used 💯”. The influencer included a link to purchase the product and wrote, “Use code “Julie” for 40% off”. Further text at the bottom of the screen stated, “@skinbaeanbeyondco ad”.

Two issues were identified in the complaint:

Issue 1: that the disclosure did not include a hashtag and was therefore marked incorrectly. The complainant also said that the disclosure wording was barely visible as it was written in small white text located at the bottom of the screen. They considered this to be misleading.

Issue 2: that the influencer was using a filter while applying the advertisers’ product on herself and that this was misleading.

Advertisers’ Response:

The advertisers confirmed that the stories were a paid collaboration between them and the influencer and said that they had a contract in place. They said that although they encouraged influencers to mention how they liked their products, they said the comments came authentically from the influencer. They did not address the issues raised in the complaint.

Influencer’s Response:

Issue 1:

The influencer’s agent responded on their behalf and said that all videos posted by the influencer had been approved by the brand and had undergone thorough compliance checks to ensure it met all necessary advertising guidelines.

Issue 2:

The agent said that the influencer did not use any filters in these stories as this would not have been approved by the brand.

The Independent Complaints Council considered the detail of the complaint and the advertisers’ response.

Issue 1 – Upheld.

The Council noted the Code requirements that marketing communications should be clear that they are marketing communications (3.31) and should not misrepresent their true purpose such as being presented as user-generated content (3.32). They also noted the joint guidance published by the Advertising Standards Authority and the Competition and Consumer Protection Commission (CCPC) on disclosing advertising content, which provided that advertising content should have one of three primary labels as a disclosure; #AD, a platform provided tool or #Gifted and that this disclosure should be the first word in any text block.

The Council noted that the ad disclosure did not have the # as required, that it was at the end of a text block and that its font and placement minimised its visibility. They considered the content had not been identified correctly as advertising material. They concluded, therefore, that the lack of correct disclosure resulted in the advertising being likely to mislead consumers about the nature of the content and considered it to be in breach of sections 3.31, 3.32, 4.01 and 4.04 of the Code.

Issue 2 – Upheld.

The Complaints Council noted the Code requirement that before offering a marketing communication for publication, advertisers should satisfy themselves that they will be able to provide documentary evidence to substantiate all claims that consumers are likely to regard as objective. They noted that evidence had not been received to demonstrate that a filter had not been used in the advertisement. In the absence of such evidence, the Council considered that the content was in breach of the Code Section 4.10.

Action Required:

The advertisement must not reappear in its current form. The Council reminded all parties of the requirements of the guidance in disclosing commercial content.