ASA reminds retailers of responsible advertising and that they will be held jointly responsible for influencers who do not clearly label ads

1. Responsibility

In April 2022 PLT added a listing for a pair of jeans which showed an image of a woman who wore the jeans with the zip halfway up, showing the top part of her underwear. For her torso, she did not wear any top but crossed her arms across her chest to cover her breasts. In the second image, her trousers were fully zipped up with one hand across her chest, covering her breasts, but her head and shoulders were cropped from the image.

The complainant believed that the ads sexually objectified women, and so they challenged whether PLT’s listing was offensive and irresponsible.

PLT responded that their brand aimed to use inclusive, body-positive imagery and communication to empower their customers, as well encourage their self-esteem and freedom of expression. They explained ads associated with women's jeans historically included women who had nothing on their top and this was ‘widely accepted as tasteful and inoffensive’. Thus, they believed the images conformed with this, rather than objectifying women. Despite this position, PLT agreed to remove the images from their website as PLT indicated that they understood the importance of the issue raised.

The ASA upheld the complaint and acknowledged that whilst the model’s pose was portrayed as confident and neutral, the toplessness was not relevant to the actual product being advertised as it diverted the actual focus of the product to the model’s torso. The ASA concluded that the ad would likely have the effect of objectifying the woman as the model’s physical features would draw attention to the jeans in a way that was not relevant to the jeans.

Similarly for the second image the ASA concluded that as the model was topless, attention would be drawn to her chest which the ASA believed was unnecessary in an ad for jeans. Furthermore, in the ASA’s view, the combination of the image being headless and including a bare chest removed the model’s individuality and objectified her.

Thus, the ASA found that the listing breached CAP Code rules 1.3 (Responsible advertising) and 4.1 (Harm and offence). The ASA asked PLT to prepare their future ads with a “sense of responsibility to consumers and society, ensuring they did not cause serious or widespread offence by objectifying women”.

2. Influencer Marketing

Molly-Mae Hague posted an Instagram story on 31 October 2021, in which she wore a long, brown dress and included text which stated, “… You can actually shop it now on PLT – Couldn’t not make it available for you guys too”, followed by a link to the PLT website.

The complainant, aware that Molly-Mae Hague was a creative director at PLT, challenged whether the commercial intent was made clear within the ad. PLT confirmed Hague’s position within the company, and that a contractual agreement existed between the influencer and the company. The retailer stated that the agreement expressly contained an obligation on Molly-Mae to comply with applicable laws and regulations relating to marketing and advertising, including the use of #ad. PLT stated that the failure to disclose was an error by Molly-Mae, and that PLT had reminded the influencer of the requirements of the CAP code to prevent future similar mistakes. This was corroborated by Hague’s representative.

In their assessment, the ASA also upheld this complaint. They highlighted that the CAP Code stated that marketing communications must be obviously identifiable and if the commercial intent was not obvious from the context of the communication, it must be made clear. The ASA then undertook two assessments:

1. First, the ASA considered whether the post was a marketing communication and fell within the scope of the CAP Code. Hague had a contractual relationship with PLT, where she had a paid role and was required to post about the company on social media. As such the ASA held that under that relationship her post fell within the scope of the CAP Code. Therefore, Hague alongside PLT were jointly responsible for ensuring that the marketing activity that promoted PLT on her account complied with the CAP Code.
2. Secondly, the ASA considered whether the post could be obviously identified as a marketing communication and whether its commercial intent was made clear. It had appeared on the influencers’ story with no indication it was a marketing communication. The ASA considered that whilst some of Hague’s followers may be aware of her position as Creative Director at PLT, this was not immediately clear to all consumers. Therefore, her commercial interest in the company from the actual story was unclear and it was not obviously identifiable as a marketing communication.

The ad thus breached CAP Code rules 2.1 and 2.3 (Recognition of marketing communications) and should not have appeared in the form complained of. Both PLT and Hague were told to ensure their future ads were obviously identifiable as marketing communications and the commercial intent was made clear, with identifiers such as “#ad” clearly and prominently displayed.

A robust reminder for retailers and influencers

Retailers have an increasing obligation of responsibility to consumers and society in advertising – whether that be in their environmental claims, causing offence, or ensuring that their influencers are clearly marketing ads as marketing communications.

Hague has now had three ASA rulings upheld against her, and she is not the only influencer under the ASA’s radar. This is another example of the regulators' crackdown on influencers when they fail to adhere to social media marketing rules and the CAP code. The ruling confirms the position that brands and the influencers will be held jointly liable for their advertising content.