influencers

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The Advertising Standards Authority (“ASA”), the UK equivalent of Spain’s AUTOCONTROL, has issued two rulings on the Instagram posts of two influencers promoting cosmetic products in which they used beauty filters. The authority deemed the posts misleading, as they exaggerated the products’ real efficacy to consumers.

Object of the dispute

Although the complainant’s identity is not recorded in the rulings, the starting point in both cases is the same: the use of beauty filters on Instagram exaggerated the efficacy of the promoted products and, therefore, the posts were misleading for the target audience.

Background and submissions from the parties

  • Complainant v. Elly Norris and the owner of the product, Skinny Tan Ltd. (“ELLY Case”)(decision of February 3, 2021, available here).

    The influencer made two Instagram posts on Skinny Tan’s cosmetics, which accentuate tanning. In both cases, she used a beauty filter (“Perfect Tan”) that softened features and conveyed a tanning effect. One of the posts also included the “paid partnership” tag and the text #ad.

    The company claimed it had no commercial relationship with the influencer and had not offered her any consideration.

    It also stated that in its collaborations it aims to portray its products’ properties in an authentic way. Therefore, in this case: (i) it shared the influencer’s postson its own profile because it was a “genuine” review of the experience and (ii) it did not think that the content made direct claims about the visual effects of the product but referred to the results of its application.

    The influencer claimed she had received the product as a form of collaboration with the company but that there was no contractual relationship between them that required her to share the product on social media.

    Consequently, according to the company and the influencer, there was no deception or exaggeration regarding the efficacy of the products.
  • Complainant v. Cinzia Baylis-Zullo and the owner of the product, We Are Luxe t/a Tanologist Tan(“CINZIA Case”)(decision of February 3, 2021, available here).

    The influencer published a video on Instagram depicting a product of Tanologist Tan and her starting to apply it. As she did so, she explained her experience after using the product and some of its “virtues” (e.g., that it has been dermatologically tested). In the video she used a beauty filter (“Yourbeauty”) that softens features and adds freckles, and she included the #ad tag and a link to the company’s brand.

    The company claimed that the post was a demonstration of how to apply the product and that its “after effects” were yet to be developed, so the filter was irrelevant. The influencer claimed that the filter changed her appearance by adding freckles and the post did not aim to show how the product looked on the skin but to present her experience.

    Consequently, the company and the influencer maintained that there was no deception.

The ASA’s reasoning and conclusions

In both cases, the ASA established that using beauty filters in Instagram posts to enhance a person’s appearance is common practice.

Therefore, although using them is not in itself problematic, it did consider that people who promote cosmetic products must act with particular care to avoid the product’s qualities being exaggerated or otherwise misleading consumers.

After analyzing the posts in the ELLY Case, it concluded that the filter’s effects were closely related to those obtained after applying the product. Meanwhile, in the CINZIA Case, the post — taking into account the tanning from the filter — conveyed the message that the influencer had used the product for a prolonged period of time.

Consequently, consumers could consider that the influencers’ tanned appearance reflected the results of applying the products and that, therefore, they could obtain similar results. Therefore, the ASA concluded that the advertising was misleading, as the filters exaggerated the results of applying the product.

In the ELLY Case, it ordered that the posts be removed while, in the CINZIA Case, this had already happened. Furthermore, it declared that beauty filters cannot be used for this type of products as they can exaggerate the effects achieved in applying them.

Can the ASA’s conclusions be transferred to the advertising self-regulation sector in Spain?

Spain has sectoral codes of conduct for advertising that notably include:

  • The STANPA Code in the perfumes and cosmetics sector, which sets out guidelines for responsible communication for its member entities. Its provisions are comparable to the ASA’s reasoning in the ELLY and CINZIA cases. For example, section 1.2.b) states that:

digital techniques must not cause alterations to the images of the models such that the silhouettes of their bodies or their characteristics may appear unreal or misleading with regard to the product’s real efficacy.

  • The “Code of conduct on using influencers in advertising,” of Autocontrol AEA, applicable since January 1, 2021 and which we analyzed in this blog post.

Although the AUTOCONTROL Board has already issued opinions on advertising by influencers, the codes of conduct apply to the associate or member entities and those who wish to take part in proceedings before the Board. Therefore, they are not generally applicable at the moment.

However, as with the ASA’s position, they constitute recommended good practices that, once consolidated, will constitute genuine market standards.

Authors: Nora Oyarzabal y Raúl Pérez

This post is also available in: Español

Autores:

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nora.oyarzabal@cuatrecasas.com

Asociado

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raul.perez@cuatrecasas.com