On 2 November, the UK's Advertising Standards Authority (ASA) published three separate rulings involving singer, model and presenter Myleene Klass, due to six of her Instagram posts, between May and June 2022.

Myleene’s posts involved:

  • An Instagram reel which included various celebrities holding a copy of her book entitled “They don’t teach this at school”; answering the question, “What’s something REALLY important that you should’ve been taught in school…but you WEREN’T?”. Tags included “#TDTTAS @hqstories @harpercollinsuk #Theydontteachthisatschool”
  • Two Instagram posts and one reel showcasing various Next Retail outfits, which either included the tags “@nextofficial” or “#MyleeneKlassXNext”
  • One Instagram post and story showing off pink coloured clothing and accessories with the tag “@skechers_uk”

It seems Myleene was on a roll with her social media content, only to have received complainants to the ASA, which challenged whether the posts were obviously identifiable as marketing communication.

Next Retail, Sketchers UK and Myleene all provided reasonable responses to the challenges, but not to the satisfaction of the ASA. They upheld all the complaints and deemed the ads to be in breach of rules 2.1, 2.3, and 2.4 (recognition of marketing communications) of the CAP Code.

Sketchers UK acknowledged that they had a contractual relationship with Myleene. Next Retail also acknowledged they had a similar relationship but took this a step further by arguing that it was widely reported in mainstream media that Myleene had the “Myleene Klass X Next” collaboration, so the deal was well known. They also referred back to CAP online guidance which they understood to mean that where it was immediately clear that an influencer was posting their own products, or those they had collaborated in the creation of, a prominent label such as “#ad” was not necessary.

Myleene’s representatives simply held their hands up and responded to the ASA that “there was some confusion as to what was and was not an ad”. And in all honesty, I’d be confused too if I were Myleene!

Where does the ASA currently stand on this issue?

The CAP Code provides that marketing communications must be obviously identifiable as such, and they must make clear their commercial intent. This reflects the requirement of the Consumer Protection Regulations 2008, which makes it a criminal offence for a 'trader' i.e. someone operating in business with consumers, including an influencer, to falsely pose as a consumer. This is one of the 31 banned practices in Schedule 1 of the Regulations, which makes it a strict liability offence, so there is no need for the prosecution to prove that the activity is likely to have a 'transactional effect'.

In relation to the Next Retail and Sketchers UK endorsements, the ASA held that the inclusion of company tags “@nextofficial”, “@skechers_uk” and “Myleene Klass X Next” tags were not enough to ensure the posts were identifiable as ads, nor did they make clear the commercial relationships.

In terms of the self-promotion of her book, the ASA upheld that the video was in a non-paid-for space, with the intention to promote. Viewers could’ve understood it to just be a general discussion about the subject of schools, rather than the video being related to the promotion of her own book. They held the marketing communication wasn’t immediately clear to viewers.

The ASA insists that ads must be obviously identifiable. Any attempt to disclose the commercial purpose of an ad with anything other than “#Ad” has failed, although the ASA claims (slightly unconvincingly) not to be proscriptive. There is a distinction between self-promotion on a personal Instagram page, where the influencer is not receiving payment from a brand, versus, the typical influencer style posts, promoting an endorsed business product. However, the rationale is that even when Myleene or other celebrities and influencers are promoting their own products or services, rather than those of another brand, they are still caught by the legal and regulatory principle that they must not falsely pose as a consumer.

I personally feel sorry for Myleene as they definitely don’t teach this at school. At this point, the future of social media is looking like it will be feeds of “#Ad, #Ad, #Ad”. Then again, perhaps it always should have been?

There’s no doubt that Myleene and many other influencers will start treading more carefully as they attempt to avoid the regulator’s wrath. Having taken a sneak peak of Myleene’s Instagram story today, she has definitely got the #Ad memo as it was plastered with ‘#Ad’…which I’m sure was to the ASA’s delight!