On 22 May 2024, the ASA ruled on the activewear brand ‘We Are TALA Ltd’ (TALA), determining that it had made several advertisements that were non-compliant with the CAP code. This ruling hinged on the point that the advertisements were not ‘obviously identifiable’. This is not the first time that the ASA has taken action against influencers and it has previously banned Instagram users for non-compliance. 

We summarise the key points of the ruling against TALA below.

Background

TALA is an activewear brand created by social media influencer, Grace Beverley; it was incorporated on 30 September 2020. 

Between 23 and 27 October 2023, two Instagram reels and four TikTok posts were uploaded by accounts made by Grace Beverley. Despite the fact that these posts featured Grace Beverley promoting activewear for TALA, they were not labelled as adverts. The ASA received 51 complaints, which challenged whether the posts were obviously identifiable as marketing communications.

TALA’s arguments

TALA maintained the position that Grace Beverely’s TikTok posts were easily identifiable as advertisements.

One indication of this was that they featured on a playlist which was labelled “aggressive marketing”. This was a feature on TikTok allowed influencers to group posts into playlists so that users can easily watch related content. 

TALA also argued that users who encountered the reels were aware Grace Beverely’s relationship to the activewear brand. TALA’s TikTok bio, for instance, clearly indicated that Grace Beverely had a commercial relationship with the company. They argued that her followers will have known that she was advertising the product because she was such a well-known representative of the brand; i.e., Grace Beverley was ‘synonymous’ with TALA.

Grace Beverely’s choice of language was also used as evidence that the relationship between the reels and TALA was easily identifiable. She often, for instance, spoke in first person plural. One example cited was, “… factories we literally had to beg at the door to get into”. TALA argued that it was clear that Grace Beverely was talking on behalf of the company, and accordingly it was evident that the reels were commercial in nature.

ASA Decision

The CAP Code provides that marketing communications must be ‘obviously identifiable’ as marketing communications, not simply identifiable. This provided the basis for the decision.

The ASA determined that the playlist label “aggressive marketing” could be interpreted broadly. Users who came across the playlist would not immediately understand that this was a method of determining advertisements. 

In their assessment of the argument that Grace Beverley’s relationship to TALA was obvious to those who encountered the ad, the ASA found that, while followers of Grace Beverley may be aware of this connection, other users who encountered the reels would not. In order to be aware of Grace Beverley’s position, users would have to click through Grave Beverely’s profile, watch her videos and find references to her links with TALA.

While the ASA did acknowledge that Grace Beverely’s language could have suggested a commercial relationship between her and TALA, these references only made a small proportion of the reels and they occurred several minutes into them. The words used alone, it was held, were not enough to ensure that the ads were ‘obviously identifiable’.

Ultimately, the ASA determined that the reels were not ‘obviously identifiable’ as marketing communications.

Implications 

Businesses should be alive to the issues raised by the ASA when advertising on social media and take measures to ensure compliance; particularly in ensuring advertisements are obviously identifiable. An example of this might be the use of hashtags such as #ad. While the ASA hasn’t required specific label be applied, they have consistently stated that this must be prominently displayed in adverts. Historically, the ASA have been particularly vigilant in the context of businesses who utilise influencers (as discussed by us further here). 

Social media is a changeable industry with different formats of marketing emerging frequently. Personality owned businesses are growing increasingly prominent on social media, and often fail to adequately identify the marketing rules that they are required to comply with. The ruling on TALA should act as a reminder of the importance of maintaining transparency to users when advertising on social media. 

If you would like any further information or have queries on the content of this article, please contact Richard Hugo.

This article was written by Victoria McCarron.