I look forward to Wednesdays, because that’s the day the ASA publishes its latest rulings and it’s a great way to learn, but sometimes the cases where a complaint isn’t upheld are even more interesting than those where it is. This week’s decision on whether an Instagram post from an influencer called Zoë de Pass, who goes under the name @dresslikeamum, was obviously identifiable as a marketing communication, is one of those.
I’m going to give you the post in question in full, because it’s important to be able to review the different elements. It appeared in February this year and featured an image of a pair of rainbow-coloured trainers and some rainbow-coloured espadrilles. The caption read:
“Thanks to everyone who has contributed to the ‘big feet / small feet’ chat a few posts back – some very interesting points, tips and issues raised. And thanks to everyone who has joined the waiting list for these bad boys. There are way more names on the list than shoes… (Link to waiting list on @dlam_by_zdp) (Shoes launch early May) #mumshoes #airandgrace #dlambyzdpxairandgrace #dlambyzdp #dresslikeamum.”
So the background is that this post promoted a design collaboration between Zoë de Pass and a company called the Footwear & Accessories Collective, which trades under the name Air & Grace. The business arrangement was that de Pass would receive a royalty payment for each pair of shoes sold* and the two parties had agreed on the hashtags she would use for promotional activity.
They also had a licensing agreement which obliged de Pass to promote the products, but didn’t specify that de Pass would publish a set number of posts, what the content of those posts would be or which images she would use.
The ASA concluded that the post was indeed a marketing communication and therefore, under rule 2.1 of the CAP Code, should be obviously identifiable as such – and that means using #Ad, doesn’t it? Now the sharp-eyed amongst you will have noticed that Zoë de Pass’ post does not contain those three magic characters and, if you’ve been paying attention, you’ll recall that I started off by saying that this is a case in which the complaint wasn’t upheld. So what’s going on?
Well, if you want to be completely sure that in the event of a complaint the ASA will not uphold it then, as the ASA advised at the end of last year, #Ad is a “safe bet”. However, in the same guidance the ASA also conceded that “there are other ways to distinguish an ad from the regular content of a celebrity or influencer’s timeline” – without actually going on to say what they might be. It seems that this is an example of what those “other ways” are.
de Pass argued to the ASA that she had linked through to @dlam_by_zdp, a separate account which promoted her designs for Air & Grace, and that the hashtags emphasised that she had designed the shoes with Air & Grace, so that combination is what must have swung it. She does indeed give the link to the waiting list and spells out what it is, and
The key hashtag is really #dlambyzdpxairandgrace, with the x in the middle signifying the collaboration, but de Pass also breaks that down by including hashtags for the constituent parts, #dlambyzdp and #airandgrace, which not only helps you decipher the other hashtag, but highlights that two separate entities have come together to collaborate. It convinced the ASA anyway.
So should we take this ruling as a sign that the ASA is ditching its support for #Ad? No, that would be foolhardy and we shouldn’t. Is the ASA at least becoming less rigid about its the use of #Ad and applying the CAP Code less harshly? Possibly, but I doubt it. Remember the ASA is currently in the middle of research into the workings of influencer marketing and the CMA (Competition and Markets Authority) has just announced an investigation into influencer disclosure, so I wouldn’t anticipate any significant policy changes until both those projects have run their course. However, this is definitely very interesting.
*The trainers retail for £199 and the espadrilles for £119 – but they are handcrafted metallic leather – although at the current time, bargain-hunters, the latter are marked down to £69…
Sarah Burns is Prizeology’s Chief Prizeologist and a National Trading Standards Scams Team Scambassador.