Sainsbury’s has been rapped by the Advertising Standards Authority after a link to buy baby formula from its website featured in an influencer’s Instagram story.
Lifestyle influencer Kayleigh Johnson (@kayleighjcouture) included an affiliate link – which allows content creators to earn commission from their followers’ clicks and purchases – to Sainsbury’s website in an Instagram story.
The post, seen on 29 June 2024, featured a poll box with the question: “Are you going to breastfeed? If not what formula will you use?”
Text underneath stated: “I will definitely try but much like with Caleb I’m not putting pressure on it… Caleb is well ahead of developmental ‘targets’ and a healthy boy so I have no shame in formula feeding whatsoever.”
At the bottom of the post, an affiliate link titled “formula we use” linked to a product page on Sainsbury’s website for an infant formula milk powder.
Two complainants challenged whether the ad breached the Code as it was a marketing communication for infant formula, and whether it was obviously identifiable as a marketing communication.
Sainsbury’s acknowledged that the ad should not have appeared, because marketing for infant formula was prohibited, and the product should not have been promoted by the influencer. It took immediate action to remove the ad.
Joint responsibility
The supermarket said it did not have any involvement in the creation of the content of the post, but understood it was jointly responsible for the post.
It explained Johnson was working with the affiliate network Stylink, while Sainsbury’s used the affiliate platform CJ.
Sainsbury’s said it could not block affiliates from generating links to products on its website from a technical perspective. It advised that when Stylink signed up to the CJ affiliate platform it would have agreed to comply with CJ’s terms, which stated that users of the platform were responsible for compliance with the requirements of all relevant legislation in the UK.
Stylink would have also agreed to comply with Sainsbury’s own specific terms and conditions. Sainsbury’s said it was in the process of updating those terms and conditions to more clearly outline how its partners should ensure compliance with all relevant consumer protection legislation and the CAP Code. This would include terms that outlined prohibited categories which should not be advertised by affiliates, such as infant formula.
Sainsbury’s considered it was also Stylink’s responsibility to adhere to the relevant legislation and the CAP Code.
Stylink, however, considered it was Sainsbury’s and CJ’s responsibility to block the use of affiliate links to unsuitable products.
The verdict
Both aspects of the complaint were upheld.
The CAP Code stated that, except for those in a scientific publication or, for the purposes of trade before the retail stage, a publication of which the intended readers were not the general public, marketing communications for infant formula were prohibited.
Furthermore, the ASA ruled the post was not obviously identifiable as an ad and did not make clear its commercial intent, and therefore breached the Code.
Sainsbury’s and Johnson were told future ads could not market infant formula. Furthermore, affiliate links must be obviously identifiable.
The Grocer has approached Sainsbury’s for comment.
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