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Leading fashion brands recognise the growing importance of “authenticity”. Consumers expect companies to say what they mean, and mean what they say. Further, consumers increasingly use digital media to interact with advertising content, and research and buy products. But once marketing enters the digital domain, it attains the potential to go “viral” in a way that traditional marketing simply cannot. An ill-conceived advertisement or campaign can reach millions.
The regulation of advertising is growing. Within the UK, the Advertising Standards Authority (ASA) is increasingly targeting digital advertising.
In 2017, 88% of advertisements that were amended or withdrawn in response to ASA rulings were online. The ASA’s current five year strategy (launched on 1 November 2018) makes a priority of the regulation of online advertising and new phenomena such as highly targeted and Al-driven advertising. The role of influencers is also under increased scrutiny from the ASA and the Competition and Markets Authority (CMA). This leaves aside more traditional potential issues with poorly considered advertising, such as intellectual property infringement and defamation.
This page of www.fashionlaw.co.uk is designed to help brands navigate some of these issues. We will be updating the page regularly with important legislative developments, decisions by the ASA and CMA, case law, and news. If you would like to discuss any particular questions, please do get in touch with us.
Amazon listing by Olanstar Technology Co Ltd found to be likely to cause harm and offence (23 January 2019)
A complaint was made in respect of a product listing on Amazon by clothing and lifestyle retailer Olanstar. The advertisement depicted seven pictures of a female model wearing a school girl costume, advertising the “Olanstar School Girl Costume Halloween Cosplay Uniform Classic Pleated Mini Skirt with Bow-knot”. The complainant challenged whether the advertisement breached the CAP Code on the basis that it portrayed a model who appeared to be under 18 in a sexualised manner.
The ASA considered that the model’s poses and accompanying text in the advertisement were to an extent sexually suggestive. Since Olanstar (in further breach of the CAP Code) had not responded to the ASA’s enquiries, the ASA had no information or evidence about the age of the model, but agreed with the complainant that she appeared to be young.
Therefore, the ASA ruled that the advertisement featured a person who appeared to be under the age of 18 in a sexualised way, and was in breach of the Code since it was likely to cause harm and offence.
Complaint upheld against misleading faux fur product listing by Zacharia Jewellers (9 January 2019)
A complaint was made by Humane Society International in respect of a misleading faux fur claim in relation to product listing for a headband from Zacharia Jewellers on Amazon, which featured the wording: “Zac’s Alter Ego Faux Fur Pom Pom Headband”, alongside an image of the product.
After purchasing a sample of the product, Humane Society International commissioned a report from a textiles analyst, as a result of which they concluded that the pom poms were made of real fur.
Zacharia Jewellers responded that they had been informed by their Chinese supplier that the pom poms were faux fur. They removed the product from their website (and from Amazon) pending the outcome of the investigation.
The ASA upheld the complaint and considered that the product listing breached the CAP code, on the basis that it was misleading and the retailer did not hold documentary evidence to prove that the claim which had been made could be substantiated.
Boohoo commits “faux pas” in respect of faux fur claims (9 January 2019)
Animal welfare charity “Humane Society International” complained to the ASA in respect of a product listing on Boohoo UK Ltd’s website featuring a “Faux Fur Pom Pom Jumper”, on the basis that the product contained real fur and the listing was therefore misleading.
Humane Society International had purchased a sample of the product and commissioned a test report from an expert, who concluded that the pom poms on the garment had been made with real fur.
Boohoo responded by removing the product from sale until the matter was investigated. They stated that they were committed against the use of real fur in their products and had procedures in place to ensure compliance with this commitment. According to Boohoo, the garment had passed internal quality control tests and had been supplied by a UK supplier which had signed an acknowledgement not to supply products to Boohoo which contained real fur.
The ASA, whilst noting Boohoo’s response, upheld the complaint and concluded that the product listing breached the CAP code on the basis that it was misleading and Boohoo failed to demonstrate that they held evidence to prove that the claims in the listing could be substantiated.
Channel Jumper Ltd makes misleading manufacturing claims on its website (12 December 2018)
A complaint was made by Guernsey Woollens Ltd in relation to pages on the website for Channel Jumper Ltd. One page stated: “Channel Jumper in Alderney brings you the finest quality traditional sweaters from the Channel Islands”. Another featured text saying: “Established in 1976, Channel Jumper was started as a Cottage Industry with the intention to revive the Alderney sweater which had not been seen since WW1 and to establish a knitting industry on the island”.
The complaint challenged whether the claims made were misleading, since the sweaters were not manufactured on the Channel Islands.
The ASA concluded that consumers would understand from the advertisement that Channel Jumper Ltd was based in Alderney and that the products were manufactured there. Although the company was registered in Alderney, Channel Jumper did not provide evidence to show that their products were manufactured within the Channel Islands. The advertisement therefore breached the CAP Code on the basis that it was misleading and Channel Jumper Ltd did not hold evidence which proved that the claims made were capable of substantiation.
Ozsale Pty Ltd trading as MYSALE criticised for misleading “free delivery” claims (12 December 2018)
A complaint was raised in relation to claims made on the website for online shopping club MYSALE. The website featured a banner which stated: “Free Shopping with ourpay select”, and linked to another webpage which claimed: "Ourpay Select – Buy Now Pay Later combined with Free Delivery". Further text said: “A 12-month delivery subscription combining buy now pay later and free delivery. Select from one of the three plans at checkout”. Next to this was a box in which it was written: "4 free deliveries...You Save 10.00".
The complaint challenged whether the “free shipping” and “free delivery” claims made were misleading, since consumers had to pay £10 for four “free” deliveries.
The ASA held that consumers would have understood from the website that no monetary commitment (beyond purchasing the goods) was necessary to qualify for free delivery. It was therefore misleading for MYSALE to refer to delivery as “free”. “Select” was a delivery subscription service, through which deliveries could be redeemed against orders placed using the payment method “Ourpay”. Pictures alongside the claims “buy now pay later” and “free delivery”, showed tiers of four, eight and twelve “free” deliveries, and purported savings against each. However, the claims represented savings against standard delivery fees for the corresponding number of “free” deliveries in each plan. Whilst the subscription was cheaper than the usual delivery costs charged, the deliveries were not “free”. Therefore, the advertisement breached the CAP Code on the basis that it was misleading and did not make clear the extent of the commitment which the consumer had to make in order to take advantage of the purported “free” offer.
Complaint that advertisement by Skechers USA Ltd objectified women not upheld by the ASA (28 November 2018)
Three complaints were made in respect of a TV and VOD advertisement on the basis that it objectified women.
The celebrity Kelly Brook was featured in the advertisements. She was shown dressed in jeans and a jumper and stating: “I like my clothes form fitting, but not my shoes. That is why I wear Skechers knitted footwear. So I look and feel my best. People tend to notice things like that.” In the advertisement, two men are distracted by Kelly. One crashes into his colleague and drops what he is carrying; the other cycles past and looks back at her.
The ASA investigated the advertisements but did not uphold the complaints. The clothes which Kelly was wearing were not revealing and her behaviour was not sexualised, exploitative or objectifying. The advertisements did not objectify or degrade women and were not socially irresponsible or likely to cause offence.
UK Direct Shop Ltd makes misleading and unsubstantiated claim in respect of celebrity endorsement (21 November 2018)
A complaint was raised in relation to an advertisement for online retailer UK Direct Shop, on the basis that the claims made in the advertisement were misleading and could not be substantiated. The advertisement featured a magnetic link bracelet with pain relief magnets, with accompanying text stating “AS USED BY CELEBRITIES!” The retailer provided no evidence to confirm that the bracelet had been used by celebrities.
The ASA considered that the claim was presented conclusively, and therefore consumers would be likely to interpret it literally. The complaint was therefore upheld. The advertisement breached the CAP Code on the basis that it was misleading and UK Direct Shop did not hold documentary evidence to demonstrate that the endorsement was genuine.
Advertisement by Converse Inc. not held to be socially irresponsible (7 November 2018)
A complaint was raised regarding an advertisement for Converse Footwear, which appeared as a banner in a YouTube video in August 2018. The advertisement depicted a student taking an exam, with his legs crossed in a manner which showed answers written on his shoe. Accompanying text said: "ALL THE STORIES ARE TRUE", and the advertisement description stated: “Converse does not condone cheating but the stories are true". The complaint alleged that the advertisement was irresponsible and encouraged academic misconduct.
Converse responded that the advertisement was one in a series of advertisements making up a campaign that told stories about people who had worn Chuck Taylor trainers. They argued that the advertisement promoted truth and honesty, since it stated: "Converse does not condone cheating but the stories are true".
The ASA investigated the advertisement and found that it was not in breach of relevant CAP Code rules pertaining to irresponsible advertising and condoning violence or anti-social behaviour. The ASA considered that audiences were likely to see the advertisement as lighthearted and, whilst they might not understand the intention behind the text "Converse does not condone cheating but the stories are true", it nevertheless reinforced the message that cheating was not acceptable.
Advertisement by Converse Inc. did not encourage unsafe practices (31 October 2018)
Three complaints were raised in respect of a YouTube video promoting Converse Footwear, which featured the actress Millie Bobby Brown with one foot up on the dashboard of a moving car. The complaints alleged that the advertisement condoned or encouraged unsafe behaviour that could be emulated by young people.
The ASA held that there was no breach of the CAP Code. The advertisement did not encourage unsafe practices, contain anything likely to result in physical, mental or moral harm, or depict children shown unattended in street scenes. The angle of the video drew attention to Milly Bobby Brown’s face and the story which she told in the advertisement. The ASA considered that viewers would understand that the actress’s foot was raised in order to advertise the trainers she was wearing and the way she was posed was not otherwise relevant to the content of the advertisement. Therefore, viewers were likely to pay very little attention to the way she was sitting, and so the advertisement did not promote unsafe practices.
Laura Ashley Ltd makes misleading price claims in emails to customers (17 October 2018)
Three issues were investigated by the ASA in respect of emails to customers which contained the following wording:
"Extra 10% Off ALL Home Sale"; "SALE CONTINUES - UP TO 50% OFF* HOME + EXTRA 10% OFF*"; and "UP TO 70% OFF* FASHION + FURTHER REDUCTIONS".
"40% Off Everything ends tonight"; and "NEW SEASON LAUNCH EVENT ENDS TONIGHT 40% OFF* EVERYTHING".
"Hurry! 40% Off EVERYTHING Event ends TONIGHT"; "Due to higher than expected order volumes, some of you may have experienced difficulty online over the weekend in placing your orders"; and "OFFER HAS BEEN EXTENDED ENDS MIDNIGHT TONIGHT 40% OFF* EVERYTHING".
The first issue concerned the savings claims which were made. The ASA considered that these claims had not been substantiated and were misleading because the higher “previous” prices stated were not the correct amounts at which items were usually sold at the time of the advertisement. Therefore, the price claims did not represent genuine savings and the advertisements presented the information ambiguously.
In respect of the email stating: "40% Off Everything ends tonight", concerns were raised that consumers were likely to understand that they would need to make a purchase before the end of the date on which the email had been sent in order to participate in the sale. However, the closing date was in fact extended by a day due to technical difficulties with customers making payments through the Laura Ashley website. The ASA considered that these circumstances were unavoidable and beyond the control of the retailer. Had Laura Ashley not chosen to change the sale closing date, those who were unable to participate within the original terms of the sale would have been disadvantaged. Therefore, the complaint in respect of this issue was not upheld.
The final issue concerned whether the advertisements were misleading since they failed to set out significant limitations and qualifications, and the asterisks next to the claims did not link to any relevant text. The ASA ruled that the advertisements breached the CAP Code on the basis that the claims made were misleading, and the advertisements omitted important information and did not state significant limitations, conditions and qualifications.
Complaints regarding “inappropriate” advertisement by I Saw It First Ltd not upheld by the ASA (10 October 2018)
A poster for clothing brand “I Saw it First” included text stating “Ibiza x Demi Rose”, along with an image of a model wearing a sheer white dress without a bra. The ASA received 24 complaints which challenged whether the advertisement was offensive because it was overtly sexual and objectified women, and whether it was inappropriate for the advertisement to be displayed close to a school.
The ASA did not uphold the complaints on either ground. The poster advertisement a womenswear range. The dress was part of that range and the pattern was such that it was not completely transparent. The rest of the advertisement and the model’s pose was not provocative, so the advertisement did not objectify or degrade women and was unlikely to cause serious or widespread offence. Although it had been placed by chance in some locations where it was near to schools (and it may have been considered as distasteful by some), the ASA ruled that it had not been placed inappropriately and was not socially irresponsible.
Poster by LOTD Ltd advertising “festival looks” was not irresponsible, says ASA (10 October 2018)
A complaint was made in respect of a poster showing two female models at a funfair, with accompanying text stating: “festival looks from £5”. The complainant believed that the models appeared to be children and challenged whether the advertisement was irresponsible since they were being depicted in a sexualised manner.
LOTD responded that the models were both over 18, and that since women aged 18–35 made up their target market, this was reflected in their marketing campaign.
The ASA considered that while the models looked youthful, they were not portrayed in a sexual way, either by their poses or clothing. The advertisement clearly advertised festival styles and would be interpreted by consumers in that context. The ASA did not consider that a fairground setting was restricted only to younger age groups. Therefore, the advertisement was not irresponsible and did not breach the Code.
TV advertisements by Nasty Gal Ltd breached the CAP Code as “socially irresponsible” (10 October 2018)
22 complaints were received in respect of 3 television advertisements, which promoted online retailer Nasty Gal. The first advertisement showed a model posing in swimwear and other outfits playing tennis and golf. The second advertisement depicted the same scenes, with the addition of text relating to delivery. The third advertisement was an abridged version of the two.
The complainants challenged whether the advertisement were socially irresponsible on the basis that the model looked extremely thin. Nasty Gal responded that the model was a size 8 with a normal BMI.
The ASA considered that whilst the model generally appeared to be in proportion, there were particular scenes within the advertisements which were problematic since they drew unnecessary attention to her very slim physique, or highlighted her prominently visible rib cage. The ASA ruled that the model appeared to be unhealthily underweight in these scenes and concluded that the advertisements breached the CAP Code on the basis that they were socially irresponsible.
Watches2U International Ltd makes misleading and unsubstantiated price claims (3 October 2018)
Two complaints were made against retailers Watches2U, both of which were upheld by the ASA.
The first complaint was made in respect of an Amazon page listing Krug-Baumen watches for sale. The page showed higher prices which were struck out and followed by lower advertised prices. The complainant challenged whether the crossed out “original” pricing was misleading and could be substantiated. The ASA upheld the complaint since they considered that the prices listed were not the usual selling prices of the watches at the time the advertisements appeared.
The second complaint related to an eBay page which listed a watch for sale with the description "Krug Baumen ... Diamond Blue Dial Gold Plated Strap RRP £795”. The complainant again challenged whether the RRP claim was misleading and not substantiated. The ASA considered that consumers would likely understand from the advertisement that by making a purchase, they would make a saving against the price at which the watch usually retailed. However, it appeared that the product was not sold by any other retailers. Therefore, the ASA considered that the RRP claim breached the Code on the basis that it was misleading (overtly and by omission), not substantiated and falsely claimed a price advantage.
Advertisement by Lightinthebox (UK) Ltd makes misleading and unsubstantiated price and delivery claims (3 October 2018)
Two complaints were raised in respect of an advertisement for men’s shoes which appeared on the website for Lightinthebox. The price was listed as “GBP £34.11 (crossed through) £19.74 (43% off)”. Additional text stated: “Process time 2-5 business days Shipping Time: Expedited Express 2-5 business days”.
The first complaint was that the price claim was misleading and could not be substantiated because of additional fees which consumers had to pay after completing the purchase. The ASA upheld this complaint since they considered that customers would interpret “£19.74” to be inclusive of all non-optional taxes, duties, fees and other charges. Since the product appeared on a UK website, UK buyers (who would have to pay VAT on the goods) were the predominant consumers. The actual total price could have been calculated in advance and should have been included in the advertised price. Therefore, the ASA found that the advertisement breached the CAP Code on the basis that the price claim was misleading, could not be substantiated, and the quoted price did not include all non-optional taxes, duties, fees and charges that would apply to most buyers.
The second complaint was that the processing and delivery claims were misleading and could not be substantiated. The ASA considered that the claims would be interpreted to mean that it would take a maximum of 10 business days after payment to receive the order. However, the product was shipped from China. In the absence of any evidence in support of the delivery claims, the ASA upheld the complaint on the basis that the claim could not be substantiated and was therefore misleading.
Instagram post by Zoe de Pass was clearly identifiable as an advertisement (19 September 2018)
There was a licensing agreement between Air & Grace and Zoe de Pass, under which de Pass was paid royalties as part of a shoe collaboration. A post on de Pass’s @dresslikeamum Instagram page featured two multi-coloured trainers with the caption: “Thanks to everyone who has contributed to the ‘big feet / small feet’ chat…some very interesting points, tips and issues raised And thanks to everyone who has joined the waiting list for these bad boys here are way more names on the list than shoes... #mumshoes #airandgrace #dlambyzdpxairandgrace #dlambyzdp #dresslikeamum”.
A complaint was raised regarding whether the post was obviously identifiable as marketing material. Air & Grace responded that the post promoted a design collaboration and was not an advertisement.
Whilst the ASA disagreed, it did not uphold the complaint. Although the ASA found that the post was a marketing communication falling within the remit of the CAP Code, they considered that it was obviously identifiable as an advertisement. This was on the basis that it included references (and a link) to a waiting list, and the use of hashtags and the Instagram handle for the merchandising page were sufficiently clear for consumers to understand that the post was intended as an advertisement.
Complaint upheld in respect of Instagram Story by Louise Thompson (12 September 2018)
A complaint was made in respect of an Instagram story shared on Made in Chelsea star Louise Thompson’s page, which showed a video of her with a make up product and the caption: “Obsessed with my glowspin! Swipe up for $100 off using my code ‘louiseglow Swipe up awesome @vanityplanetstore”. The swipe up motion directed consumers to the website of retailer Vanity Planet on Instagram.
The complainant challenged whether the post breached the CAP Code since it was not obviously identifiable as an advertisement. The ASA upheld the complaint on the basis that, whilst members of the public may have understood from the Instagram story that there was a commercial relationship between Louise and Vanity Planet, in the absence of a clear indicator such as “#ad,” it was unclear that the post was intended as an advertisement, rather than editorial content.