Whilst there are numerous complaints made against Instagram posts, these don't always end up in an upheld ruling by the ASA. This is certainly a new development for the industry as the ASA reached a decision to uphold a complaint against Sanofi in respect of its use of an influencer to endorse one of their products on Instagram.

The most interesting part of this ruling is the ASA's consideration of when an influencer is considered a "celebrity" pursuant to the CAP Code.

A post on Ms Willox Knott's (@thismamalife) Instagram feed seen in February 2019 showed Ms Willox Knott in bed smiling with an image showing a packet of Phenergan Night Time tablets in the background.  The Instagram caption included: "... I tried out Phenergan Night Time, which really helped. It is a pharmacy only, short term solution to insomnia for adults which works by inducing a sleepy effect thanks to its active ingredient, promethazine hydrochloride, helping you to sleep through the night. Do you guys fall asleep easily or are you night time over thinkers like me? #AD #sleep”..."

Of course Ms Willox Knott was prudent to include the appropriate disclosures required by the CAP Code - however, the CAP Code does not allow for any health professionals or celebrities to endorse any medicinal products. As Ms Willox Knott is not a health professional the question really was whether she was a "celebrity"?

Despite Sanofi arguing that Ms Willox Knott's following was not comparable to the followings of Stephen Fry (359,000 followers) and David Beckham (55 million followers), ASA decided that as far as it was concerned Ms Willox Knott did fall into this category as she has over 32,000 followers which meant "she had the attention of a significant number of people. Given that she was popular with, and had the attention of a large audience, we considered that @ThisMamaLife was a celebrity for the purposes of the CAP Code."

The use of influencers by brands to market their products has grown in an exponential manner over the last decade and as the social media platforms develop these issues will continue to arise. This is a bold decision for the ASA as the guidance they issued earlier this year didn't cover endorsement of medicines, so the ASA had to get creative to deal with this complaint. It wouldn't be surprising if the ASA were to modify the CAP Code to extend its prohibition for the endorsement of medicines on health professional and celebrities to include influencers. Alternatively it may decide to redefine the definition of "celebrity"?