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The Danger of the Social Media Filter – ASA Rules Adverts are Misleading

The beauty industry faces a constant challenge in relation to the truthfulness of the products it sells. Through the power of social media, beauty brands use influencers to endorse their products, adding a dimension of apparent authenticity to their advertising.

In an attempt to regulate such practices, the Advertising Standards Authority (ASA) has focused on transparency, requiring that brands disclose their commercial relationship with the influencer, usually with the hashtag “#ad”. The beauty industry now faces yet more regulation, as the ASA has restricted certain uses of filters on photos that promote beauty products.

Complaint to ASA:

The ASA’s recent ruling related to the Skinny Tan brand, which had re-posted several influencer stories. The complainant believed the influencer’s use of the social media platform’s filter exaggerated the efficacy of the advertised cosmetic tanning product and argued that using ads in this way was misleading to the consumer.

In response, Skinny Tan argued that although they had sent the products to the influencer as a form of collaboration, there was no contractual obligation for the influencer to share the Skinny Tan products on social media and therefore, the influencer would not have been aware of the implications of filter use.

The ASA’s Assessment:

The ASA understood that it is common for such filters to be applied when users share photos. In addition, the ASA noted that the influencer’s post contained the text “#ad” and “#gifted”. Nevertheless, it was the ASA’s view that the use of the filter resulted in a significantly darker skin tone. The filter’s effects were therefore directly relevant to the intended effects of the product and the claimed performance of the product, giving a misleading impression about the capabilities of the product and therefore in breach of CAP Code Rules 3.1 and 3.11.

Key Takeaway:

Although the element of transparency was arguably addressed by Skinny Tan through use of the “#ad” hashtag, the ASA appears to be taking the accuracy of advertising beauty products very seriously. In addition to using the guidance provided by the CAP on beauty and cosmetics, brands must be conscious of social media use, must not endorse or encourage the use of filters to exaggerate efficacy, and should aim to portray their products in an authentic way.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 42
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About this Author

Carlton Daniel Intellectual Property Attorney Squire Patton Boggs London, UK
Partner

Carlton Daniel advises on intellectual property rights, commercial contracts and consumer regulatory law. He handles both contentious and non-contentious matters.

Carlton has a particular focus on providing advice to clients in the advertising, marketing and media sectors, and also to businesses operating in the food and drink, retail, automotive and tech sectors.

Intellectual property rights: Carlton has significant experience advising on the exploitation and protection of trade marks, designs, copyright, databases, confidential information and patents. As...

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