Who: The Advertising Standards Authority (ASA), Jemma Lucy and Skinny Caffe.
Where: United Kingdom
When: 31 July 2019
Law stated as at: 4 September 2019
Diet drink company, Skinny Caffe, and social media influencer Jemma Lucy have found themselves in hot water over breaching the CAP Code and raising significant health concerns. Jemma Lucy took to Instagram, to promote Skinny Caffe’s coffee, hot chocolate and thermosyn capsules, all of which purported to aid weight loss. The post sparked complaints over the breach of CAP advertising code by failing to clearly identify the promotion as an advert. Furthermore, because Jemma Lucy was pregnant at the time of posting, the ad appeared to promote unhealthy weight loss during pregnancy.
Skinny Caffe accepted responsibility for the wording of the post, stating that it believed only a small percentage of Ms Lucy’s followers might have been pregnant. However, it argued that Jemma Lucy did not imply that she used the products whilst pregnant, and had simply posted the promotion as a favour to a friend. As Ms Lucy accepted the free product and agreed to take part in a full campaign for Skinny Caffe later in the year, it was found that the arrangement was more than just a favour. The ASA also found that both Skinny Caffe and Jemma Lucy were jointly responsible for ensuring that any promotional activity was obviously identifiable as advertising, and that they failed in doing so.
Skinny Caffe and Jemma Lucy were both instructed that the ad must not appear in such form again and that future ads must be identifiable as marketing communications, for example, by using “#ad” at the start of a post. Skinny Caffe was also warned not to encourage unsafe practises, and not to make claims that referred to a rate of amount of weight loss for foods.
Why this matters:
This ruling is interesting as there was no actual payment, payment-in-kind or any other consideration for Jemma Lucy making the post in relation to Skinny Caffe. However, the ASA still held that the post was an ad, on the basis that Jemma Lucy had agreed to participate in a campaign in the future. As such, brands should be aware that it is possible for a post to be deemed an ad when a brand and influencer have agreed to potentially enter into a commercial arrangement in the future, even if there is no payment (or similar consideration) in respect of the current post.
Earlier this year, the ASA announced that had it warned “between 200 and 300” social media influencers for breaking paid partnership rules in the past 12 months and has worked hard to help influencers label posts appropriately (for example, see Love Island Cheat Sheet).