On the 14 June 2020, Emily Canham posted a video on her TikTok account which featured her using a GHD branded hairdryer and straighteners. The caption alongside the video said, “hiii just a lil psa there’s 20% off the GHD website TODAY ONLY with the code EMILY… #fyp #foryourpage”.
The post was challenged at to whether the advert was obviously identifiable as a marketing communication.
The contract that governed the relationship between Jemella Limited (GHD) and Emily Canham was provided by Jamella Limited. It revealed that Ms Canham was obliged to provide several social media posts while at a music festival. The contract was effective from 2 March 2020. However, the music festival was cancelled due to the coronavirus. The contract then varied, and Ms Canham had to provide a TikTok video on 26 May, two Instagram posts across 13 to 14 June, and a YouTube video across 13 to 14 June also. Jemella Limited said that the 14 June TikTok post was not part of the contractual obligations. It was created without their oversight and approval and Ms Canham was not paid for the post or the promotional code featured in it.
The Advertising Standards Authority (ASA) noted that the 14 June post featured the same promotional code specified in the agreement to promote GHD. The ASA recognised that Ms Canham did not receive commission from the promotional code, but because it was linked to the agreement the ASA considered the post to be an advert for the purposes of the UK Code of None-broadcast Advertising and Direct & Promotional Marketing (CAP Code).
The ASA considered that there was nothing in the content of the 14 June post to clearly showed those viewing it that it was an advert, such as #Advert or #Ad. The advert therefore breached rules 2.1 and 2.3 (Recognition of marketing communications) of the CAP Code (Edition 12).
- Marketing communication must be obviously identifiable as such.
- Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context.
The ASA told Emily Canham and Jemella Limited that they must ensure that any future adverts are obviously identifiable as marketing communications. Identifiers must be prominently and clearly displayed. The 14 June advert must not appear again in the complained about form.
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