December 6, 2021

Volume XI, Number 340


December 03, 2021

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Cosmetic Blunder – All UK Instagram Content Must Make Clear on the Face of it That It's An Ad, Including Reels and Stories

The UK Advertising Standards Agency (ASA) has found that an influencer’s Instagram reel and story breached the advertising regulations. All advertising made by influencers must make it clear that it is an advert, otherwise brands, even if they have no control, will be held jointly responsible.

The content – Instagram reels and stories

For those unfamiliar with Instagram reels and stories, a reel is a video up to 30 seconds (which can be made up of lots of videos), and a story is a vertical photo or video, of up to 15 seconds, that disappears after 24 hours after posting.

Eliza Batten, a social media influencer, posted a reel and story on Instagram promoting the use of a large cosmetics company’s (the “Cosmetic Brand”) products. The story had a ‘swipe -up’ function that took users to the relevant product page on the Cosmetic Brand’s website. The reel stated:

Nowhere to go to in my go-to makeup @[CosmeticBrandhandle] [camcorder emoji] […] #collab #makeup”.

A complaint was made that neither the reel nor the story was obviously identifiable as an advert.

The case

Eliza Batten received a small commission via a third-party influencer network for all sales made through the story’s link to the Cosmetic Brand’s website. Ms Batten was also gifted the Cosmetic Brand’s products.

The ASA found that as “the direct beneficiaries of the marketing material through an affiliate programme”, the Cosmetic Brand and Ms Batten were jointly responsible for such ads and their compliance with the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code).

The complaint was upheld despite the following facts:

  • The Cosmetic Brand had no form of control over Ms Batten’s Instagram posts

  • The Cosmetic Brand also did not request any posts in exchange for the gifted items

  • The network required influencers to comply with all applicable advertising rules and disclosure obligations

  • After the complaint was known, the network reminded Ms Batten of the ASA requirements;

  • Ms Batten apologised and added the necessary ‘#ad’ to her posts, and

  • The inclusion of the hashtag “#collab” in the caption of the reel (which the ASA considered insufficiently clear that there was a commercial relationship).

The ASA therefore found that the reel and the story were not obviously identifiable as marketing communications and did not make their commercial intent clear, and the complaint was upheld.

Key Takeaways

Key learning points from this case:

  • Train your influencers: providing up-to-date training to influencers before the influencers are given free products or can monetise links.

  • Audit your influencers: ensure ongoing compliance by conducting randomised audits of influencer posts.

  • Approval mechanisms: as the brand is likely to be held responsible regardless of control, perhaps consider introducing some sort of approval mechanism.

  • Duration doesn’t matter: remind your influencers that it doesn’t matter how short the video is or the duration the posts is, the advert must identify all posts as adverts using ‘#ad’ – ‘#collab’ is not sufficient.

Copyright 2021 K & L GatesNational Law Review, Volume XI, Number 294

About this Author

Arthur Artinian, KL Gates Law Firm, London, IP Procurement Attorney

Arthur Artinian is a Partner in the firm’s London office and head of the London IP and Technology Transactions practice. Mr. Artinian is an internationally recognised intellectual property lawyer, and advises on contentious and non-contentious trade mark, copyright, design, e-commerce, advertising, licensing, commercial and data privacy matters. He has been fortunate to work with many iconic brands on their strategic IP projects across multiple jurisdictions. Clients rely on his experience in complex cross-border IP counselling, litigation, enforcement and transactional...

Georgina Rigg, KL Gates Law Firm, London, Finance Law Attorney

Georgina Rigg is an associate in the firm’s London office. She splits her practice into three core areas, namely, 1) intellectual property and commercial law including advertising, 2) EU regulatory law with a particular focus on product claims and chemicals, and 3) competition and antitrust, where the team’s unique experience in selective distribution allows her to draw on knowledge taken from each of her core areas of practice.