Grace under fire… from the ASA… with lessons for all brandowner influencers


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Published
May 22nd '24
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Two Instagram reels and four TikTok posts on Grace Beverly’s accounts, @gracebeverley, were found to have broken disclosure rules this week, in a decision the ASA described as “precedent setting”.

 

Miles Lockwood, Director of Complaints and Investigations at the ASA told Marketing Week: “It makes it clear that, even when influencers are cross-posting with a business account, they need to properly label their ads. We don’t expect the public to play detective to work out whether they’re seeing paid-for content. An easily visible ‘#ad’ makes all the difference.” 

 

The crux of the matter is that even though Grace Beverly and TALA posted the content jointly, and even though she used language that made it blindingly obvious she and TALA had a commercial relationship and she had effectively designed or made the clothing, it wasn’t clear enough BEFORE a person interacted with the content.  So, the ‘get out of jail free’ card would have been to put ‘ad’ on the post she posted on her own account.

 

Controversially, the ASA suggested that the average consumer would not have known that the Instagram handle ‘wearetala’, referred to a brand and would not have understood from the headnotes (indicating joint posting by the influencer and brand), that the posts were collaborations posted on an individual’s social media account to promote a brand’s products. The ASA concluded, in that context, that the use of the co-publishing feature on Instagram was not enough to make either post obviously identifiable as an ad.

 

So what happened?

a. An Instagram reel, jointly posted on 24 October 2023 by Grace Beverley and TALA, featured a caption which stated “with a waitlist as long as the list of things this coat can do, she’s finally back after a year. This Thursday, 12pm on @wearetala. Ps. Watch till the end for a chance to win a puffer”. The reel featured a video of Grace Beverley describing the benefits and versatility of a puffer jacket. During the video she said “These puffers were made in factories we literally had to beg at the door to get into” and “She’s now launching in charcoal and vintage khaki, and she’s launching an online version too”. At the end of the video, she said “I’m going to give away three of the short line ones, one in each colour, just tell me how much you want it.” Text on the video stated “give me less than a minute to tell you why this is the best coat the world has ever seen”.

b. An Instagram reel, jointly posted on 25 October 2023 by Grace Beverley and TALA, featured a caption which stated “oh you thought we were done”. The reel featured a video of Grace Beverley describing the benefits of a coat and the different scenarios it could be used for. Text superimposed on the video said “give me one minute to tell you why you need a Co-op pyjama coat”.

c. A TikTok post, seen on 24 October 2023, featured a video of Grace Beverley wearing and interacting with the coat which featured in ad (a). Text superimposed on the video stated “4-in-1 puffer asmr for sleep meditation”. A caption on the post stated “part 2. The Co-op pyjama puffer”.

d. A TikTok post, seen on 25 October 2023, featured the same video as seen in ad (b). A caption on the post stated “Part 28. Oh you thought we were done”.

e. A TikTok post, seen on 25 October 2023, featured a video of Grace Beverley describing a bomber jacket. Within the video, she stated “I wanted to make a bomber that was made out of all the cold weather materials” and “I don’t know if I’ve ever been so proud of how one of our pieces has turned out”. A caption on the video stated Grace was replying to a user who asked her a question. That question was featured as an image imposed on the video and stated “How much is the reversible colour bomber jacket and can you do a video modelling that one too?”. Further text superimposed on the video stated “give me less than a minute to tell you why this reversible bomber is the most perfect winter bomber you can imagine”.

f. A TikTok post, posted on 27 October 2023, featured a video of Grace Beverley trying on various items of clothing and jewellery. Within the video, she stated “It’s thrilling just being able to make clothes you wanted to buy, and then not really having to buy them even though you had to buy thousands of units”. Text on the video stated “GRWM. Day to night”. A caption on the post stated “Part 1. Cool girl”.

 

Complaints

51 complainants challenged whether the posts were obviously identifiable as marketing communications.

 

TALA/Grace Beverley’s response

We Are TALA Ltd t/a TALA said Grace Beverley was widely synonymous with the business and its branding, which they believed was unusual within the fashion industry. They said it was uncommon for an influencer to be the founder and owner of such a successful and well-known business, but that alongside Ms Beverley, they were aware of the importance of ensuring ads were identifiable.

 

However, they believed there was a deliberate and clear use of language in all the ads which indicated there was a commercial relationship between TALA and Ms Beverley, and more specifically, that TALA was her own business. They believed the majority of her followers would have known that, and given that context, the use of a disclaimer should not have been mandatory for all marketing communications promoting TALA on her personal social media pages. They believed such a disclaimer would itself have made the ads misleading, as it would have led consumers to think that rather than being the founder or owner of the TALA business, Ms Beverley was an arm’s length influencer who had no commercial interest in the business, and was merely promoting goods because she was being paid to do so.

 

They said her TikTok bio clearly indicated she had a commercial relationship with TALA, and that ads (c), (d) and (e) featured on a TikTok video playlist Ms Beverley curated, titled “aggressive marketing”, which she had created specifically to ensure her posts were obviously identifiable as ads. They said her extensive use of the first-person plural in ads (d), (e) and (f) made that connection further obvious.

 

They believed the cumulative effect of her bio, the playlist title and the language used would have made it clear to viewers that the posts were ads, and that very few users on social media interested in fashion or who followed Ms Beverley would have been unaware of her connection to TALA. They believed that requiring Ms Beverley to label posts on her personal social media channels promoting TALA, because a small number of people who followed her may have not known that she was the founder of the company, was unfair.

 

Ms Beverley’s representatives said she was the founder and director of TALA, as stated on her Wikipedia page and in all of her social media account biographies. They believed she was synonymous with the brand, and that viewers would be aware that clothes featured on her personal social media accounts were manufactured by TALA. They said it was evident from the way she spoke about the clothing that TALA was her own brand, and that the level of detail she provided about the production and design elements of the items of clothing made it clear that she was involved in their creation and not a consumer.

 

Ms Beverley’s representatives acknowledged that the purpose of ads (a) and (b) was to promote products she and her company TALA, had created. They said both ads were jointly posted as Instagram reels by Grace Beverley’s account and TALA’s account, as evidenced by the headnote on the reels stating “gracebeverley and wearetala”which were clearly visible throughout the duration of the videos. Because the ads were also posted by TALA, which was a business page, Ms Beverley’s representatives believed the reels were obviously marketing communications when viewed in the context of an individual and a business jointly publishing the same video under a headnote. They believed text featured in ad (a), “give me less than a minute to tell you why this is the best coat the world has ever seen”, and similar text in ad (b), also made it clear they were ads.In addition, they said that in ads (a) and (b), Ms Beverley discussed the attributes of the products from the point of view of the person who created them, meaning viewers were left in no doubt about her association with TALA. For example, in ad (a), she said “… factories we literally had to beg at the door to get into”, and in ad (b), she said “[W]e don’t play around here”. They believed that, because she spoke in the first-person plural about the products, including specifically about the manufacturing process, the reels could not have been construed in any way other than as marketing communications.

 

Although Ms Beverley’s representatives acknowledged that ads (c), (d), (e) and (f) were posted on her personal TikTok account, they believed the posts were obviously ads because, through the language she used, she was clearly a business owner talking about her own brand’s products. For example, in ad (e) she said “I wanted to make a bomber” and “I wanted to do another colour because we aced the fit so well.”

 

They said ads (c), (d) and (e) featured on a playlist Ms Beverley curated, titled “aggressive marketing”, which she created specifically to ensure her posts were obviously identifiable as ads and therefore compliant with the Code. Playlists were a feature on TikTok which allowed some creators to categorise their public videos into playlists to make it easier for users to watch related videos in a series. However, we understood that those videos could also be served individually to users who did not follow Ms Beverley. They said ads (c) and (d) featured Ms Beverley, who again spoke in the first-person plural, modelling the products and clearly demonstrating their versatility from the point of view of the designer, which they believed signified TALA was her own brand. She also referenced the manufacturing process for the product in ad (d) when stating “[I]t is made in a factory”. In addition, in ad (f), they said Ms Beverley referenced the benefits of her ownership of the company when stating “[J]ust being able to make clothes that you wanted to buy and not really having to buy them”. She also referred to a business shoot the company did in ad (d).They said ad (e) featured Ms Beverley answering a question from another TikTok account about the attributes and cost of one of TALA’s products. She again spoke in the first-person plural. For example, she said “I don’t think I have ever been so proud about how one of our pieces has turned out”. They said the TALA TikTok account was tagged in the post, and believed that the language used in the caption and the fact that she had knowledge of the jacket’s release onto the market made it clear she was commercially linked to the jacket. They therefore believed it was clear that Ms Beverley was commercially linked to the TALA brand as opposed to having bought the coat as a consumer.

 

Assessment

  • Upheld

The ASA said that marketing communications must be obviously identifiable as such, and that they must make clear their commercial intent if that was not obvious from the context. This is something the ASA says every time, but apparently meaning something very limited (and frankly a bit mysterious) when they say a disclosure is needed when it’s “not obvious from the context”…

 

The ASA noted that Grace Beverley was the founder and director of TALA, was remunerated as an employee of the business and therefore had a commercial relationship with the brand. They therefore considered that social media posts made by Grace Beverley in her capacity as an employee of the brand, which were directly connected with TALA’s products, constituted marketing communications in non-paid-for space, under the control of TALA, meaning both parties were responsible for ensuring the posts complied with the CAP Code.

 

They considered whether ads (a) and (b), Instagram reels, were obviously identifiable as marketing communications. They acknowledged that the ads contained some indicators that could have suggested that Ms Beverley had a commercial interest in the TALA brand. For example, she often spoke in the first-person plural, such as in ad (a), in which she said “[F]actories we literally had to beg at the door to get into” and in ad (b), in which she said, “[W]e don’t play around here”. While the ASA acknowledged the language used by Ms Beverley could have suggested she had a commercial relationship with the TALA brand, the ads were several minutes long and those references were made part-way through, so a user was required to engage with the ads before they heard them. The ASA therefore considered those phrases were insufficient to ensure the posts were obviously identifiable as ads.

 

The ASA noted the reels were jointly posted on Grace Beverley’s and TALA’s accounts, and that both parties had agreed to be co-publishers, which was a feature launched on Instagram in 2021. That meant the reels appeared in both parties’ feed and would have been seen by those who followed one of those accounts, even if they did not ‘follow’ the other, for example, through the ‘Explore’ function. The ASA considered that some Instagram users would have been aware that both parties had posted the reels, due to the headnote which stated ‘gracebeverley and wearetala’ that appeared on-screen throughout, and that, as co-publishers, they were jointly promoting products sold by TALA. However, they also considered that some Instagram users would not have been aware of what ‘co-publishing’ was, or that its functionality required both parties to jointly agree to publish a post. We also considered that at least a significant proportion of users, especially those who did not follow the accounts, would not have known that the Instagram handle ‘wearetala’, referred to a brand and would not have understood from the headnotes that the posts were collaborations posted on an individual’s social media account to promote a brand’s products. We considered, in that context, the use of the co-publishing feature on Instagram was not enough to make either post obviously identifiable as an ad.  

 

Note: this seems to be a fairly controversial conclusion, suggesting that brands that aren’t well known enough, in the ASA’s minds, might not be obviously identifiable as brands…

 

For those reasons, the ASA considered that the commercial intent behind ads (a) and (b) was not made immediately clear upfront and concluded that those ads were not obviously identifiable as marketing communications.

 

We next considered whether ads (c) to (f), TikTok posts published as posts on Ms Beverley’s own personal TikTok account, were obviously identifiable as marketing communications and whether they made clear their commercial intent. The ASA acknowledged TALA’s view that, while some of Ms Beverley’s followers would have known that she was the founder and director of TALA, many of the users who would have been served the posts would not have known that was the case. The reference in her bio was not sufficient.  Instead, a clear reference such as #ad should have been used. The references she made in the course of the TikTok were insufficient to ensure the posts were obviously identifiable as ads.

 

The ASA also acknowledged that posts (c), (d) and (e) were on a playlist entitled “aggressive marketing”. However, we considered that it would not have been immediately obvious to users viewing the post what that meant…. and, given it was not a well-known phrase or method for disclosing ads, it could have been interpreted in different ways.

 

Note: it’s not entirely clear to me what other ways this could be interpreted that would indicate it was anything other than marketing… but the ASA said that some users may have interpreted a video being on a “playlist” as being a reference to music.  I suspect young people might respond to this by saying ‘Ok, boomer’ (if they still say that).

 

For all those reasons, the ASA found that the ads were in breach of the CAP Codes and must not appear again without a clear and prominent label, such as #ad.

 

Source: Lewis Silkin – AdLaw . Authors: Geraint Lloyd-Taylor.

 

Need some promotional advice? If you want to understand more about how to make sure your marketing materials meet ad standards, please click here.

 

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