Who: The Advertising Standards Authority (ASA), ASOS.com LTD t/a ASOS (ASOS) and Zoe Sugg Ltd (Zoe Sugg)
Where: United Kingdom
When: 22 April 2020
Law stated as at: 11 May 2020
In the summer of 2019, influencer and vlogger Zoella (Zoe Sugg) posted an Instagram story featuring an image of herself wearing a dress. The Instagram story included text which stated: “Lots of you loving the dress I’m wearing in my newest photos!…it’s from @missselfridge Swipe up to shop…”. The image also include the text “*affiliate”, but this text was obscured by an icon that appeared in the Instagram app.
A complainant, flagging the advert to the ASA, challenged whether the ad was obviously identifiable as a marketing communication.
ASOS and Zoe Sugg both confirmed the Zoella had an affiliate relationship with a third-party influencer network and would receive a commission when Instagram users clicked through the link and made the purchase from ASOS.
ASOS believed that in principle the disclosure “affiliate” should be considered adequate to signpost where there is a purely affiliate relationship in place between a brand and in influencer. While Zoe Sugg Ltd believed the story complied with CAP’s guidelines on affiliate links by including the identifier “affiliate” on the relevant section of the Instagram story.
Both ASOS and Zoe Sugg referred to the Ipsos MORI research report which the ASA had commission in September 2019 (“Research on the Labelling of Influencer Advertising Report“). As the report stated that the difference between “#advert” and “#affiliate” in a Twitter post was ‘directional’ rather than ‘significant’, ASOS believe the lack of significance meant “affiliate was equally as suitable a label as “advert”. Zoe Sugg also highlighted a number of examples in the report where the label “affiliate” performed better as an identifier than “sponsored” or “spon”.
In their adjudication, the ASA acknowledged that that ASOS had no direct input into or control over the ad, however it still considered that as the direct beneficiaries of the marketing material via the affiliate programme, both ASOS and Zoe Sugg were jointly responsible for the ad and its compliance with the Committee of Advertising Practice Code.
While the text “affiliate” was obscured on Zoella’s Instagram story, the ASA considered whether the term itself would be sufficient to obviously identify it as an ad. Also referencing the Ipsos MORI report, the ASA noted that the report provided no examples where more than 45% of participants recognised a marketing communication as an advert where “affiliate” was used in isolation. For this reason, the ASA considered that the term “affiliate” was therefore unlikely to be sufficiently clear as a standalone label to ensure affiliate ads were obviously identifiable.
Why this matters:
Following the publication of the Ipsos MORI report (a point to note is that the report was published two months after Zoella’s offending Instagram post), the ASA highlighted that people struggle to identify when social media posts by influencers are ads, and confirmed that its current approach of requiring influencers to use a prominent reference, such as #ad, is necessary as a minimum.
Marketers and influencers should take appropriate steps to ensure that any affiliate links used in social media posts are obviously identifiable as marketing communications and such posts must make clear their commercial intent, if that was not obvious from the context. The ASA have clearly set out that #ad must be included as a minimum.