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ASA ruling on weight loss post – Jemma Lucy

Published on 07 November 2019

Is your choice of influencer appropriate for your product, especially when they might be encouraging an unsafe practice?

The key takeaway

Always ensure your influencers use a prominent identifier (eg #ad) when you have a commercial relationship with them. And be careful who you choose (ie pregnant women and weight loss supplements are not the best match).

The ad

On 5 May 2019, reality TV celebrity Jemma Lucy published an Instagram post that read as follows:

“I’ve been staying in shape with my go to @skinnycaffe products. I love the Coffee’s [sic], Hot Chocolate’s and the Thermosyn capsules are amazing! I love to use them as me and some of the girls have been seeing great results and they work with or without exercise. You can lose up to 7lbs in 7 days with Thermosyn. Right now you can claim your first packet of Thermosyn free by clicking here”. A link to Skinny Caffe’s website was included in the post.

The Complaint 

The ASA received 25 complaints about the post relating to a number of issues. Some complainants challenged whether the post was “obviously identifiable” as an ad, while others challenged whether it was irresponsible in encouraging pregnant women to consume weight loss supplements. The ASA also challenged the claim about weight loss, as advertising that attributes a rate of weight loss to “consumption of a particular food” is in breach of the CAP Code. 

The response

The White Star Key Group (trading as The Skinny Caffe) responded by stating that Jemma was a personal friend to an employee of the company and made the post as a personal favour. They had sought to create brand awareness ahead of Jemma giving birth. The Group also stated that there was no implication Jemma had used the products while pregnant. It defended the weight loss claim by saying customers had told the Group of their own weight losses resulting from usage of its products. 

The decision

The ASA upheld all three main strands of complaint received.

On the first point, it found that the post was not obviously identifiable as an advert, which gave rise to a breach of CAP Code (Edition 12) Rules 2.1, 2.3 and 2.4. It found that there was a commercial relationship between Jemma and White Star. Also, White Star provided the wording for Jemma’s post which gave them a degree of control such as to make it a marketing communication. The post should have included a prominent identifier at the start of the ad, such as #ad.

On the second point, the ASA acknowledged that the post did not make express reference to Jemma’s pregnancy, nor show her as noticeably pregnant in the picture. But her other posts did mention her pregnancy, which had also been widely reported in the press. It considered the ad to be irresponsible by encouraging consumers, potentially including pregnant women, to use weight loss supplements. This encouraged an “unsafe practice” and put the ad in breach of CAP Code Rule 1.3.

Finally, the claim about weight loss was also in breach of the Code, namely Rule 15.6, which prohibits health claims that refer to a rate or amount of health loss.

Why is this important?

The ruling is yet another example of a failure to correctly identify a post as an ad where a brand has supplied free products (here a weight loss supplement) and also exercised editorial control (by providing the wording they wanted her to include). It is also a reminder about not allowing influencers to encourage unsafe practices.

Any practical tips?

Note that Jemma did not expressly reference her pregnancy in the post, nor did she appear pregnant in the accompanying picture. However, her other posts – and the press – clearly referenced her pregnancy. It follows that you need to know your influencers well (ie the context in which they are making their posts) to see whether they are truly right for your brand – and this is particularly relevant to products that may be deemed unsafe in certain circumstances (as here, with Jemma’s pregnancy). In short, don’t forget to do your homework on those you choose for your campaign.