The ASA recently ruled against Marnie Simpson, late of Geordie Shore and currently an influencer with 3.4 million followers on Instagram and over 305,000 Facebook friends. Granted, the fact that the ASA ruled against an influencer is interesting, but perhaps not incredibly newsworthy – we’ve been here before with Millie Macintosh, Louise Thompson and, of course, Louise Thompson (yes, twice).
In fact, Marnie Simpson herself has been there before, because in 2017 the ASA decided that a promotional Snapchat snap about iSpyEyes coloured contact lenses wasn’t obviously identifiable as a marketing communication. This time round the complaint even related to promotions for the same product, so you might well be forgiven for thinking there was nothing new to see here. However, there was one particular aspect of the new case which caught my attention and set me thinking.
The latest complaint concerned whether Marnie had encouraged ‘an unsafe practice’, because under UK and European law colour contact lenses could only be supplied by an optician, which wasn’t mentioned in her posts. We’re talking about the kind of contact lenses that make your brown eyes blue or give you the appearance of having, say, bloodshot eyes (useful if you’re faking illness for a day off work, I suppose).
iSpyEyes’ defence was that it believed coloured contact lenses were not classified as an ‘optical appliance’ in the UK, because they didn’t seek to correct eyesight, and so could be sold in the UK and EU without the supervision of an optician.
Marnie’s defence was that the FAQs on the iSpyEyes’ website advised customers to visit an optician for a lens fitting prior to purchasing the product and also featured other information about how to wear the lenses, along with a demonstration video from Marnie herself. However – and this is the aspect that interests me – part of her defence was that her posts weren’t really directed at her fans in the UK, because her fanbase is global.
Marnie’s solicitors agreed that Geordie Shore was made and originally broadcast in the UK, but they pointed out that it was currently broadcast in a number of other countries. They also stated that Instagram does not provide information on the location of followers or from where ‘likes’ are posted, and that more than half her Facebook followers are from outside this UK. This, they argued, meant that posts could not be said to be targeted at UK consumers, the implication being that if they weren’t targeted at UK consumers, they weren’t in breach of UK regulations.
For me, this highlights an important issue about global prize promotions, which is that you can’t blithely make assumptions. If your promotion doesn’t apply to a particular demographic – and that might be under-18s, drivers over the age of 60 or people living in Uttoxeter – you need to make that clear by actively excluding them. If your promotion could pop up in a country where the rules are different, you need to acknowledge and provide for that eventually (and from a prize promotions point of view the rules in other countries can be very, very different to those in the UK).
Although the ASA weren’t given any documentation on Marnie’s Instagram followers, it acknowledged that people from all over the world love Marnie. However, from the documentation her lawyers did provide, it noted that she had significantly more Facebook fans based in the UK than in any other single territory. The ASA said the promotional posts must not appear again in the same form, and Marnie and iSpyEyes were told not to encourage unsafe practice or to imply that they could legally sell the coloured contact lenses in the UK.
The lesson here is that you need to legislate for all eventualities and, if necessary, exclude everyone who could come across your promotion but to whom it doesn’t apply. Wherever the potential participants in your promotion may reside – and of course on social media they could live pretty much anywhere in the world – you need terms and conditions that relate to them. Basically, if someone made a complaint about you to the ASA, ‘No one in the UK really looks at my promotions’ would probably be a very poor excuse…
Sarah Burns is Prizeology’s Chief Prizeologist.