Description:
A static post showcased a photograph of an in-store ad. On the in-store ad, there was also a photograph of an individual together with a quote stating her recommendation about the advertised product. In the caption that accompanied the static post, the individual indicated how surreal it was to see herself in the ad in-store and highlighted some of her favourite skincare products of the brand and why she loved them. The influencer also tagged both the retail store and the brand using the @ symbol.
Complaint:
The complainant alleged the post was misleading because the individual only tagged the brand in her post with the @ symbol, but did not use any hashtags to help clarify the material connection she had with the brand.
Response:
In its response to Council, the brand advised that they would contact the individual to seek remedial action. The post was subsequently revised to include the hashtag #BrandPartner [with the name of the brand indicated] at the top of the post preceding the rest of the information in the caption.
Decision:
Council appreciated the brand’s response, and considered the complaint together with the brand’s submission.
In their discussions, some Council members felt the overall general impression of the post implied that the individual was an endorser of the brand/product, and thus that a reasonable interpretation was that the parties had a material connection. Given this, those Council members noted that while a hashtag reference may have been ideal, it was not ‘necessary’ to disclose within the actual post because the average viewer would understand there was a relationship connecting the individual and the brand.
This, however, was not the prevailing view of Council. A majority of Council members found the post omitted relevant information resulting in an advertisement that was deceptive or misleading because having a relationship with the brand made the individual’s post bias necessitating the need for further disclosure that included the partner or ad hashtag. As a result, they held that there was a violation of Clause 1(b) of the Code.
When it came to the individual’s testimonial, one Council member noted that, “she [the individual] didn’t just post saying, wow I can’t believe this is me kind-of-thing”, but rather that she was making an additional testimonial in her post triggering a contravention of Clause 7. While some Council members were of the view that there was a violation of Clause 7, a majority of Council did not take that position, and found the testimonial to be a genuine representation of the individual’s endorsement, and that was sufficiently clear by the individual being featured in the ad. As a result, the prevailing view of Council was that there was no violation under Clause 7.
Infraction:
Clause 1(b)
