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Instagram story on the influencers account for HelloFresh.
An Instagram story featured the contents of a HelloFresh box and the meal being prepared.
The story included the following text:
“Click the link or use my code to get 50% off your first box, plus additional savings. The code is also valid in the UK. The discount may vary.
50twins”
The advertisers’ handle, which was underlined, and the word “Ad” were both on the top right-hand part of the screen in white font.
At the bottom of the image the hashtag ‘#hellofresh’ was used.
Complaint
The complainant did not consider that the content had been correctly disclosed as a marketing communication given that the word ‘Ad’ had not included a hashtag and was in white font against a changing background that at times meant it was not visible.
Response
Advertisers’ Response:
The advertisers stated that they were familiar with the requirements of the ASA’s Guidance on Influencer Advertising and Marketing and that they took steps to procure compliance by all influencers they engage.
They said that their agreement with the influencer expressly required compliance with all applicable advertising standards, including clear and prominent disclosure of their paid partnership. They provided an excerpt from their Instagram requirements that are shared with all influencers upon their engagement, which included that ‘#ad’ must be prominently displayed on all sponsored posts. They said that compliance with these guidelines was a mandatory condition of working with HelloFresh.
The advertisers said that in each of the images provided, the influencer had included the label ‘ad’ but without the hashtag. They said that, upon discovering this, they reiterated their expectations to the influencer and reminded them of their obligations. They said that they were also reviewing their internal processes to confirm what other steps could be taken to ensure performance going forward.
The advertisers said that they acknowledged that the content did not fully align with their requirements for social media content, however, they considered that it was recognisably a marketing communication, and they did not consider that consumers would have been misled.
They said that each post was explicitly labelled with the term “ad”. Whilst the absence of the hashtag prefix deviated from their requirements and the recommended practice outlined in the Guidance, they said that the standalone use of “ad” was sufficiently clear to indicate the commercial nature of the content. They said that the addition of a hashtag to the word was highly unlikely to have materially changed a consumer’s perception of a Post. They said that the key requirement under the Code was recognisability as an advert, not the formality of the labelling.
They said that the Posts contained clear markers of a commercial relationship as each Post included a direct link to the HelloFresh website, the Influencer had shared a personal promotional code for her followers to use, and the Posts were not in the style of unsolicited user generated content.
They considered that the likely audience of the Posts were familiar with influencer marketing and would reasonably understand that the Posts formed part of a paid partnership. They considered that this was especially likely given that the influencer regularly posted paid promotional material, and her audience was familiar with her participation in paid partnerships.
In the light of the above, they did not accept that the Posts breached the ASA Code
Influencer Response:
The influencer asked if there was a problem as they could not see one.
No response to the complaint issues was provided.
Conclusion
Complaint Upheld
The Complaints Council considered the detail of the complaint, and the responses received from the advertisers and the influencer.
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. The Council considered that by providing for specific disclosures, consumer recognition that content is advertising would be enhanced. In addition, they noted that the Joint Guidance provided that advertising disclosures should be at the start of a video and the first word in a text block.
The Council noted that while the word ‘AD’ had been used, a hashtag (#) had not been used. The Council considered that it was likely that consumers would regard a brand handle as a text box. They noted that the word ‘AD’ had been placed after the brand handle and that a faint light font had been used that lacked a consistent clarity for viewers given the changing background. They therefore considered that the content had not been immediately identifiable as commercial content. In the circumstances, the Council concluded that the omission of the hashtag, the inconsistent clarity of the font and the incorrect placement of the disclosure was in breach of Sections 3.31 and 3.32 of the Code.
Action Required:
The advertising should not appear in its current form again. The Council reminded all parties of the requirements of the ASA Code and the Guidance in regard to disclosing commercial content posted by influencers.
The Council welcomed the fact that the advertisers required compliance with the Guidance by influencers working with them and they noted the steps taken by the advertisers in the matter to ensure compliance going forward.
