Therefore, brands will need to take care to ensure that both their own and influencer marketing communications do not use production techniques (including social media filters) that exaggerate the effects of their products and mislead consumers.
The Advertising Standards Authority ("ASA") yesterday (4 February 2021) upheld complaints against Instagram posts promoting tanning products using social media filters:
- an Instagram story by influencer Cinzia Baylis-Zullo promoting We Are Luxe t/a Tanologist Tan, included a video of her applying the product using an Instagram filter;
- a reposted Instagram story on the Skinny Tan Instagram account featured a story from influencer Elly Norris, which included an image of her face and shoulders with the text caption “So impressed with how that went on, honestly like no other fake tan I’ve ever put on, and the smell is just something else. Can’t wait to see what it’s like tomorrow morning [heart-eyes emoji]”; and
- a reposted Instagram story on the Skinny Tan Instagram account, featured a story from Elly Norris, which included an image of her with the text caption “Haven’t done my make up yet, but absolutely obsessed with the @skinnytanhq coconut serum I used last night. Smells amazing. Can’t wait to get some proper pictures to show you guys!”
In all three instances, an Instagram filter had been applied to the posts and the complainant argued that the filter exaggerated the efficacy of the advertised cosmetic product. Therefore resulting in the ads being misleading.
Why are these ASA rulings of interest?
This appears to be the first time that the ASA has banned the use of filters on social media platforms in relation to the promotion of cosmetic products and it coincides with the ASA's new guidance on production techniques in the beauty and cosmetics sector, which was published earlier this week.
What was the ASA's view?
The use of filters (including beauty filters) are common features in social media apps/platforms and often used in relation to selfies and video content on social networks. A variety of filters are available from humorous and fun filters to filters that change the tone and colour of an image to beauty filters that enhance the appearance of the person in the image. The ASA understands this and they did not consider that the use of filters in ads was inherently problematic. However, they thought that in the context of promoting cosmetic products, advertisers needed to be careful not to exaggerate the effect of the products or otherwise misled consumers as to the effects that can be achieved by such products.
The filters used in the ads in question resulted in darker skin tones and the filter used by Ms Baylis-Zullo also added freckles, and created a smoother complexion.
The ASA considered that the effects of the filters were therefore directly relevant to the intended effects of the product and gave a misleading impression about the performance capabilities of the products that were the subject of the posts. One further point to note is that even though one of the posts included text at the top identifying the filter (and which some users might have recognised a reference to a filter), the ASA did not consider that such indicator affected the overall impression of the ad, which was that it demonstrated the effects of the product.
Lessons to learn
These recent rulings reflect the ASA's tighter approach to production techniques in the beauty and cosmetics sector as detailed in their new guidance yesterday covering the following three areas:
- Pre-production techniques e.g. styling, make-up, eyelash inserts and hair extensions;
- Post-production techniques e.g. re-touching of photographic images using digital or other technology; and
- Qualifications or disclaimers such as superimposed text.
The purpose of the guidance is to make it clear that claims (including visual claims) should not misleadingly exaggerate the performance and effects of a product. It sets out the extent to which production techniques can be used and those that risk misleading consumers.
In this case, the filters used to promote the products were not obvious filters (e.g. humorous and fun filters). The nature of the filters used by the influencers resulted in darker skin tones and smoother complexions and implied an enhanced performance of the relevant tanning products. As such, they exaggerated the true effects of the products and were misleading.
In light of this, advertisers in the beauty and cosmetics industry should take careful note of the ASA's recent guidance and rulings in this space and ensure that their own marketing communications and those of their influencers do not use production techniques, which exaggerate the performance of their products.
This article was authored by Sonal Patel Oliva from our Advertising & Consumer Protection group. If you have any queries or would like any further assistance in this area, please do not hesitate to get in touch with Sonal.
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