Advertising Standards Agency rules on use of social media beauty filters in advertisements and begins to publicly name repeated infringers

UK – ADVERTISING AND MARKETING

The Advertising Standard Agency has made two rulings in relation to the use of in-app beauty filters. The rulings highlight that beauty filters should not be used on photos and videos where the filters are directly relevant to the performance of the products being advertised and would be likely to exaggerate the efficacy of the product being advertised and mislead consumers materially. Despite efforts to educate the influencer industry, repeated non-compliance has led the ASA to begin to publicly name repeat infringers.

Key date(s)

• 4 April 2011 – Advertising Standards Agency (“ASA”) publishes guidance on the use of pre and post-production techniques in ads for cosmetics.
• 3 February 2021 – ASA rules that two Instagram stories advertising Skinny Tan Ltd products, which featured beauty filters, breached the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (“CAP Code”).
• 3 February 2021 – ASA rules that an Instagram story advertising products from We are Luxe Ltd which featured a beauty filter breached the CAP Code.
• 17 June 2021 – ASA announces that it will publicly name influencers on a dedicated website (here) who repeatedly break its advertisement rules.

Status

• The ASA’s previous rulings in relation to the cosmetics industry have tended to focus on the use of post-production techniques for cosmetics products in TV advertisements (TV advertisements falling under the UK Code of Broadcast Advertising (“BCAP Code”)). The ASA published guidance on such pre and post-production techniques (the “Guidance”) back in 2011. In two recent cases however the ASA was able to reapply the core principles set out in the Guidance to digital forms of advertising.
• In recent years beauty brands (and other consumer brands) have harnessed the power of social media to advertise to consumers and have increasingly used influencers. An influencer is defined by the ASA as someone paid by a brand to advertise a product on their own social media because of their social media influence.
• Posts by influencers on social media promoting branded products must be compliant with the CAP code. Much of the ASA case law around influencer marketing has centred around ad labelling. Under the CAP code an advertisement must be obviously identifiable as such, usually by the inclusion of a prominent label such as #Ad.
• The cases regarding influencers using beauty filters focus not on the consumers ability to identify if an influencer’s post is an advertisement but the potential that consumers could be materially misled by the content of influencers’ advertisements due to filters exaggerating the efficacy of products.
• Despite the ASA’s efforts to educate the influencer industry, in the wake of repeated and high-levels of non-compliance, the ASA announced that it will publicly name repeat infringers of its rules.

 What it hopes to achieve 

• In making its two rulings, the ASA will hope to guide both brands and influencers’ future actions when advertising using beauty filters.
• The rulings against brands Skinny Tan Ltd and We Are Luxe Ltd both contained similar facts. Both brands reposted Instagram stories by influencers who were promoting the brands tanning products. In both cases, influencers had applied beauty filters, which are usually applied in-app at the time of taking a photo or recording a video and work to enhance an individual’s appearance.
• The particular beauty filters in question altered the influencer’s skin tone and complexion, the ultimate effect being that the skin tones of the influencers appeared darker than would have been the case if the beauty filter was not used.
• The ASA found in both cases that there had been a breach of:
  • Rule 3.1 of the CAP Code which states that marketing communications must not materially mislead or be likely to do so; and
  • Rule 3.11 of the CAP Code which states that marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
• The ASA told both the brands and the influencers that beauty filters should not be applied to photos or videos which promoted beauty products, if such filters were likely to exaggerate the effect the product was capable of achieving.

Who does it impact? 

• Beauty brands: which market products using social media will be impacted by the rulings as the onus is on them to ensure advertisements do not mislead consumers even when the advertisements are done through influencers.
• Influencers: who work with beauty brands to promote cosmetic products will have to consider whether the filters they use could materially mislead consumers.
• Social media platforms: which may need to work with the ASA to enforce their rulings where an advertiser is unwilling or unable to work with the ASA.

Key points 

1. Filters must not mislead consumers

• • Influencers and advertisers of beauty products (or any other products) must not apply filters to photos and videos where the filters are directly relevant to the performance of the products being advertised (for example a filter which changes an individual’s complexion in relation to tanning products or a filter which changes the shade and brightness of teeth in relation to teeth whitening products) and would be likely to exaggerate the efficacy of the product being advertised and mislead consumers materially.

2. Responsibility ultimately lies with brand

• • Where the use of a filter misleads consumers about the efficacy of a product, responsibility will ultimately lie with the brand. Therefore, brands may wish to put clear provisions in commercial contracts with influencers, warning against the use of filters where such filters may materially exaggerate the efficacy of beauty products.

3. Use of filters can be misleading even when labelled

• • The ASA noted that marketing communications can still be misleading when a filter has been used and is evidenced in the photo or video, for example where filters are referenced in Instagram stories, and is likely to exaggerate the efficacy of a product..

4. User generated content
   • Brands will have to pay careful consideration to the user-generated content they share in the future as the CAP Code is still applicable to such content. In the Skinny Tan case, the influencer had not been paid by Skinny Tan to share her complimentary review of the product on her Instagram story and there was no commercial relationship between the brand and the influencer. The brand shared the influencer’s post as the review was positive however this type of user generated content will still fall within the remit of the CAP Code.

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