Banned adverts and Love Island Cheatsheet: Instagram guidance

5th August 2019 Media Law

Ex-on the beach star and social media influencer, Jemma Lucy, was forced to take down an Instagram post after it was banned last week by the Advertising Standards Authority (“the ASA„). The ASA is the regulatory body that enforces the set of rules regulating adverts, the CAP Code (known as “the Code„).

The post in question from Jemma Lucy was an advert for weight loss products, and showed Jemma sitting at a table with Skinny Caffe products on the table. The caption to the photo read, “I’ve been staying in shape with my go to @skinnycaffe products. I love the Coffee’s, Hot Chocolate’s and the Thermosyn capsules are amazing!..You can lose up to 7lbs in 7 days with Thermosyn„.

It is publically known that Jemma is pregnant. The ASA received 25 complaints about the post and banned the post on several grounds:

1. #ad

Firstly, it was not clear from the post that it was an advert. Skinny Caffe argued that Jemma knows the company personally and had uploaded the post as a favour. However, the ASA was of the view that there was a commercial relationship between Jemma and the company, and that the post should have contained a prominent identifier to make it clear that it was an advert, such as “#ad„.

2. Irresponsible content

Secondly, the ad irresponsibly encouraged the consumption of weight loss products during pregnancy. Skinny Caffe responded to this point and said:

  • there was no implication from the post that Jemma was using the products whilst pregnant;

  • only a small percentage of Jemma’s followers are likely to be pregnant;

  • the company’s website states that the products are not for use during pregnancy; and

  • Skinny Caffe had replied to any messages they had received which asked whether the products could be used during pregnancy.

The ASA rejected these arguments, and said that it was clear from Jemma’s Instagram generally and from the photo used in the post that Jemma was pregnant. The wording in the post made it appear as though Jemma had been using the weight loss products during her pregnancy, and therefore the ad could be seen to encourage the use of such products by pregnant women. The ASA noted that this is contrary to the National Institute for Health and Care Excellence (NICE) guidelines which recommend against dieting during pregnancy.

3. 7lbs in 7 days

Thirdly, the ASA found that the claim in the post that “you can lose up to 7lbs in 7 days with Thermosyn„ was in breach of the CAP Code, as it implied that an amount and rate of weight loss can be attributed to the consumption of a specific food product.

Skinny Caffe defended this point and said that paying customers had informed them of such weight loss results, but this argument was not accepted by the ASA, as the claim in the post amounts to a clear breach of the CAP Code.

For those reasons, the advert was banned.

Love Islanders Cheatsheet

Given the increase of influencers using Instagram to promote products, the ASA has produced guidance to help influencers and companies that use influencers to avoid committing breaches of the CAP Code.

The ASA recently published a “Love Island Cheatsheet„ which contains some “ABC„ guidance specific to Love Island contestants.

The guidance centres around 4 important principles for the former Love Island contestants to remember before posting on behalf of brands:

 1.Authenticity make sure your followers know when you’re advertising something;

2. Brands when a brand pays you to promote their products or services, ensure that this is clear from your post;

3. Control if a brand has controlled your post when you are paid to post or given something for free in return for posting, make it clear from the post that it is an ad; and

4. Discount Codes if you are being rewarded for sales from a discount code or a link contained in your post, you must say that it is an ad.

This guidance applies to any influencer posting on social media, and it is clear from this guidance that the key for influencers to remember is that all posts which amount to the promotion of a product on behalf of a brand should make that clear, e.g. by using the “#ad„ at the start of the post.

However, it is important for influencers to remember that using “#ad„ won’t be enough to avoid complaints and potentially having posts banned by the ASA. As with Jemma Lucy’s Skinny Caffe post, instagrammers should also be thinking about whether their post breaches any other principles from the Code to avoid posts being banned by the ASA and in the more serious cases, to avoid receiving fines where complaints are referred by the ASA to Trading Standards.

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Lizzie McPeake is a Solicitor located in Manchesterin our Commercial Litigation department

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