Influencers and cosmetics: misleading advertising for using filters on Instagram

 The Advertising Standards Authority (“ASA”), the UK equivalent of our SELF-CONTROL, has issued two resolutions in which it considers the publications of two influencers on Instagram about cosmetic products in which they used beauty filters to be misleading, on the understanding that the Consumers would receive a biased message about its actual effectiveness.

Object of the dispute

Although the identity of the claimant does not appear in the resolutions, the starting point in both cases is the same: the use of beauty filters on Instagram exaggerated the effectiveness of the promoted products and, therefore, the publications were misleading to the intended audience.

Background and arguments of the parties

Claimant c. Elly Norris and the owner of the product, Skinny Tan Ltd. (“ELLY Matter”) (decision of February 3, 2021, available here).

The influencer twice posted on Instagram content related to Skinny Tan cosmetics, which accentuated the tan. In both cases she used a beauty filter (“Perfect Tan”) that smoothed out the features and favored the tan. In addition, one of the posts included the reference that the collaboration had been paid (“paid partnership”) and the hashtag #ad.

On the one hand, the company claimed not to have a commercial relationship with the influencer or to have offered her a consideration.

Likewise, he stated that, in possible collaborations, he seeks to try to reflect the properties of his products in an authentic way. Therefore, in this case: (i) she shared the influencer's publications on her own profile, understanding that it was a “genuine” review of the experience; and (ii) considered that the content did not make direct / visual allusion to the effects of the product, but to the results of its application.

For her part, the influencer claimed to have received the product as a form of collaboration with the company, without mediating a contractual relationship between them that forced her to share the product on social networks.

Consequently, according to the company and the influencer, there was no room for deception or exaggeration of the effectiveness of the products.

Claimant c. Cinzia Baylis-Zullo and the company that owns the product, We Are Luxe t / A Tanologist Tan (“CINZIA Matter”) (decision of February 3, 2021, available here).

The influencer posted on Instagram a video in which she showed a Tanologist Tan product and began to apply it. At the same time, she was explaining how her experience had been after using the product and some of its “benefits” (e.g. that it has been dermatologically tested). In the video she used a beauty filter (“Yourbeauty”) that softens the features and draws freckles, included the tag #ad and a link to the company's brand.

On the one hand, the company claimed that the publication was proof of how to apply the product and that its "after effects" had not yet manifested themselves, so the use of the filter was not relevant. For her part, the influencer claimed that the filter changed her appearance by adding freckles and the publication did not seek to demonstrate how the product was on the skin but to detail her experience.

Consequently - claimed the company and the influencer - there was no deception.

ASA's reasoning and conclusions

In both cases, ASA assumes that the use of beauty filters in Instagram posts to improve the appearance of a person is a common practice.

In this way, although its mere use is not problematic, it does consider that those who promote cosmetic products should act with special diligence (“particular care”) to avoid that the qualities of the product are exaggerated or in another way may mislead customers. consumers.

After analyzing the publications in the ELLY Case, he concludes that the effects of the filter were closely related to those obtained after applying the product. While in the CINZIA Affair, the post - taking into account the tanning of the filter - carried the message that the influencer had used the product for a long time.

Consequently, consumers could understand that the tanned appearance of the influencers reflected the results of having applied the products and that, therefore, they could obtain similar results themselves. Consequently, ASA concluded that the advertising was misleading, as the filters contributed to exaggerating the results by the application of the product.

In the ELLY case, he urged the withdrawal of the publications, while in the CINZIA case this had already taken place. In addition, it stated that beauty filters cannot be used in this type of product to the extent that they can exaggerate the effects achieved after their application.

Are ASA's conclusions transferable to the advertising self-regulation sector in Spain?

In Spain we have sectoral codes of advertising conduct, among which it is worth mentioning:

The Code igo STANPA in the perfumery and cosmetics sector, which sets the guidelines for responsible communication to member entities. Its provisions contain provisions comparable to ASA's reasoning in the ELLY and CINZIA cases. For example, its section 1.2.b) provides that:

"Digital techniques must not cause alterations in the images of the models such that the silhouettes of the bodies or their characteristics may appear unreal and misleading with respect to the actual efficacy of the product that is predicted."

The “Code of conduct on the use of influencers in advertising”, of Autocontrol AEA, which is applicable from January 1, 2021 and whose characteristics we analyze in this blog post.

Although the AUTROCONTROL Jury has already issued opinions on the advertising of influencers, it is true that the codes of conduct apply to linked or adhered entities and to those who wish to take part in a procedure before the Jury. Therefore, to date they are not of general application.

However, as with the ASA criteria, they constitute recommendations of good practices that with their consolidation will constitute authentic market standards.