Description:
The influencer posted a video on their social media platform promoting certain new cosmetic products that were delivered by the brand. The influencer appeared to be surprised by the delivery, and excited to try the new products. The influencer tagged the brand in the post using the “@” symbol in the post itself. No material connection with the brand was disclosed.
Complaint:
The complainant claimed the influencer was posting for the brand under the guise of a casual daily vlog because there was no advertising disclosure nor was there any disclosure as to the nature of a material connection the influencer had with the brand.
Response:
In its response to Council, the brand confirmed that while the influencer has attended their events in the past, they did not have a contract in place with this influencer, and the products featured in the advertisement were gifted to the influencer without any obligation to post. The brand also noted that they did not have any editorial control over its content.
Decision:
Council appreciated the advertiser’s response, and considered the complaint together with the advertiser’s submissions.
Council was of the view that because the featured products were gifted to the influencer by the brand there is an implied connection; one Council member noted “…just the fact that there isn’t some sort of’ ‘formal’ engagement isn’t enough to say that there’s no connection…it should be clear that it was a gift and that there is a connection”.
Given that the influencer had historically attended the brand’s events, Council found that was sufficient to deem an ongoing relationship; for example, receiving regular ongoing free products and/or regularly attending events, etc. versus a one-off gift. As a result, Council determined the influencer’s views and opinions may not have been objective and as a result required the necessary disclosure identifying the material connection between the parties, which the influencer failed to do in this instance.
Council unanimously held that the advertisement contravened Clause 1(b), Clause 1(f), and Clause 2 of the Code, given the ad omitted relevant information and was presented in a format/style that concealed the fact it was an advertisement.
Council unanimously held that the advertisement did not contravene Clause 7 of the Code dealing with testimonials, which provides that the testimonial reflects the genuine, reasonably current opinion of the individual making the representation based on their experience with the product. Council determined that this Clause was not applicable because it was obvious from the video that the influencer had not yet tried the products and therefore was not providing an opinion on their experience with the products.
Infraction:
Clause 1(b), Clause 2, Clause 7
