On 16 February 2022, the UK’s Advertising Standards Authority (ASA) confirmed it had upheld a complaint against the online fashion retailer Boohoo UK Ltd (Boohoo) in relation to an online advertisement posted on its website. The ASA held that the ad had objectified and sexualised women, was irresponsible and likely to cause serious offence.
This article examines the ASA’s decision together with other instances where the regulator has challenged the marketing practices of online fashion retailers. The relevant provisions of the CAP Code are also highlighted, identifying the key provisions governing online marketing in this sometimes controversial industry.
The ad was posted on www.boohoo.com on 26 November 2021 and featured a product listing of a T-shirt promoted by a number of images. Two of those images featured a female model wearing the T-shirt with only thong-style bikini bottoms and trainers. One showed a rear view of the model kneeling and the other showed her sitting on the ground with her legs apart. A third image showed the model wearing the T-shirt with a pair of jeans but lifting the T-shirt to expose the skin on her stomach and side.
The complainant asserted that the images objectified and sexualised women, and argued that the ad was thereby offensive, harmful and irresponsible.
In response, Boohoo stated that the images were part of its swimwear category and noted that, as a brand, it often combined a variety of products in their marketing images to show how their garments could be worn in different ways. Further, Boohoo said that the way it had presented the garments reflected the diversity of women in society and its customer base. That said, however, the company acknowledged the importance of the issues raised in the complaint and had removed the images from their website.
While the ASA understood that the T-shirt had been presented as part of the swimwear category, it also appeared as a result when searching for T-shirts alone. Further, the ASA noted that, in both images where the model was wearing the T-shirt with bikini bottoms, she was posed in a sexually suggestive way that emphasised her legs, buttocks and crotch rather than the product.
Similarly, in the third image, the fact that the model was lifting the T-shirt to expose her stomach and side led the ASA to hold that the focus of the image was the model’s exposed skin rather than the product.
Finally, the ASA held that neither the partial nudity nor the bikini bottoms were relevant to the garment being marketed for sale and the images did not show the product as it would usually be worn.
For those reasons, the ASA concluded that the ad objectified and sexualised women and was, therefore, irresponsible and likely to cause serious offence. The ad was held to have breached CAP Code rules 1.3, 4.1, and 4.9.
This was not the first time Boohoo’s marketing practices had been scrutinised by the ASA. In 2019, a marketing email from the online retailer stated: 'Send nudes. Set the tone with new season hues' superimposed across an image of a woman.
That advert was also considered by the ASA to be socially irresponsible, especially as it was aimed at a relatively young audience who were more likely to be harmed by peer pressure to share sexual images of themselves. The ad was held to contravene CAP Code rules 1.3 and 5.1.
Similarly, online marketing campaigns by fashion retailer Missguided Ltd (Missguided) have been deemed to objectify women and be likely to cause serious offence. For instance, a poster at a train station, published in 2019, showed a model wearing an unbuttoned jacket with nothing underneath, tights and high heels.
That image was considered by the ASA to breach CAP Code rule 4.1, as the ad showed the model in a state of undress and drew attention to the model’s chest area rather than the clothing being advertised. Further, the ASA considered that the model was likely to be viewed as being in a sexually suggestive pose.
The ASA had also investigated a Video on Demand ad for Missguided in 2019 which included young women in swimwear on a boat. The ad showed women in seductive poses such as with their legs apart, running their hands up their inner thighs and with their legs astride a motorcycle. The ASA again concluded that the products being advertised were presented in an overly-sexualised way which invited viewers to see the women as sexual objects. Accordingly, the ad did not comply with CAP Code rules 1.3 and 4.1.
In addition to the specific instances of non-compliance with the CAP Code outlined above, it is important to mention the overarching principles applicable to all marketing communications regulated by the CAP Code.
CAP Code rule 1.1 states that all marketing communications should be legal, decent, honest, and truthful. Further, ads should be prepared with a sense of responsibility to consumers and society and should reflect the spirit, not merely the letter, of the CAP Code.
Marketers, particularly online fashions retailers, should be aware of the following:
CAP Code rule 1.3
Marketing communications must be prepared with a sense of responsibility to consumers and to society.
CAP Code rule 4.1
Marketing communications must not contain anything that is likely to cause serious or widespread offence. Particular care must be taken to avoid causing offence on the grounds of […] sex and sexual orientation.
CAP Code rule 4.9
Marketing communications must not include gender stereotypes that are likely to cause harm, or serious or widespread offence.
CAP Code rule 5.1
Marketing communications addressed to, targeted directly at, or featuring children must contain nothing that is likely to result in their physical, mental or moral harm.
It is evident that the ASA is firmly opposed to any marketing communications which objectify and sexualise an individual and which may be viewed as irresponsible and likely to cause serious offence. Therefore, it is important that marketers, and online fashion retailers particularly, ensure compliance with the relevant provisions of the CAP Code as set out above.
In order to do so, some key takeaways from the ASA’s decisions are:
This article has been co-written with Oliver Simpson, trainee solicitor in the commercial dispute resolution team.