Friday 27 September 2019

Consumer law & the Kardashians

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.