The
UK’s Advertising Standards Authority (ASA) recently banned three beauty
advertisements, since the ads in question misled consumers and breached the UK’s
Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP
Code). The three ads, originating from three different beauty salons, appeared
on Instagram in December 2018/ January 2019 and promoted beauty products and non-invasive
cosmetic procedures. The decisions can be found here,
here
and here.
Besides
advertising prescription-only medicines such as Botox, the beauty salons posted
pictures of reality TV personalities Kim Kardashian and Kylie Jenner while promoting
their own beauty treatments. Furthermore, two of the beauty salons added the
terms ‘Kylie Jenner Package’, ‘Win the Kylie Package’ and the hashtag ‘kyliepackage’
to the text next to the photo of Kylie Jenner. According to the ASA, these
practices ‘misleadingly suggested the package would give customers lips, cheeks
and jawline that closely resembled those of Kylie Jenner’. The ASA concluded that the ads were misleading because the beauty salons did not provide sufficient
evidence that substantiated the ads’ implicit claim that Kylie Jenner’s features
could be achieved through the use of the advertised products only. Besides, in
the ASA’s opinion, these practices misled consumers into thinking those
products were used by the celebrities in question.
From
a EU consumer law perspective, the act of posting pictures of widely recognized
celebrities is an act by a trader directly connected with the promotion of a
product to consumers, which would fall under the scope of the Unfair Commercial
Practices Directive (UCPD). Under the UCPD, the
conduct of the beauty salons would likely be considered an unfair commercial
practice, even when based on a more tenuous link than the one mentioned by the
ASA. The mere posting of the pictures of Kim Kardashian and Kylie Jenner does
not have to cause consumers to think these celebrities used the products in
question, but merely that using the products in question would make them look
like these celebrities. This practice is likely to materially distort the
economic behaviour of the consumer, since it is likely that, because of this
practice, the consumer will acquire the product in the hope of looking like a
celebrity. Specifically, this practice could be considered a misleading action
under Article 6 of the UCPD. This explains why one of the beauty salons’ counterarguments
– that it would be almost impossible for a consumer to look like a celebrity
after a non-surgical cosmetic procedure – is legally irrelevant; what matters
under EU law is how the average consumer perceives the pictures, even if
(perhaps especially if) that perception is affected by biases.
The
invasion of social media platforms such as Facebook or Instagram by misleading advertising
and marketing campaigns raises several consumer law issues, stemming from the
protection of children and teenage consumers to the blurred lines between an
advertisement and an influencer’s ‘real’ opinion. In fact, the boundaries
between what is an ad and what is not an ad are often unclear, so much so that
the average consumer (if there is one) severely struggles with realizing when
she is being targeted by marketing campaigns. Indirectly, this case also highlights
the need to further study advertising and consumer law in the light of
influencer marketing.
