Background
Summary of Council decision:
Two issues were investigated, of which one was Upheld and one Not upheld.
Ad description
Two Instagram Stories from influencer Mrs Hinch’s account:
a. The first Instagram Story, seen on 7 January 2022, featured a notebook and text stated “It’s like a weight lifts everytime [sic] I finish one [monkey with hands over eyes emoji] That’s why I designed them to be in my notebook because it really helps me and I was hoping it helps you guys too x”. Below the notebook, further text stated “If you’re a little mad like me [grinning emoji] [heart emoji] TAP HERE FOR YOURS [heart emoji]. Clicking the link on the story took users to the relevant product page on the Amazon website. The video ended with the front cover of the notebook which stated "Mrs Hinch LIFE IN LISTS" and Ms Hinchliffe stated "In my own notebook of course".
b. The second Instagram Story, seen on 27 January 2022, featured an open notebook with a page titled “My Hinch List”. Text stated “Tap to shop” above a link labelled “HINCH NOTEBOOKS”. Clicking the link on the story took users to the relevant product page on the Amazon website.
Issue
Thirty-four complainants, who understood that the products in the ads were Sophie Hinchliffe’s own notebooks, challenged whether:
1. ad (a); and
2. ad (b) were obviously identifiable as a marketing communication.
Response
1. & 2. Sophie Hinchliffe confirmed that the notebook featured in both ads was of her own design and was still available to purchase in several retailers. She believed that it was clear the two Stories were ads, and that it was her own product that she was promoting, as text in ad (a) said that she had designed the notebooks herself. She also said that the notebook page featured in ad (b) included the text “HINCH LIST” and because of this, considered it was clear that the notebooks were her own. She also believed in this context that the “Tap to shop” text was equivalent to including the word “ad”, and it would not have been any clearer to viewers that the Instagram Story was an ad if “tap to shop” was replaced with “ad”.
Sophie Hinchliffe also said that she relied on the ASA Influencer Flowchart when deciding whether content should be labelled as an ad. In this case, she advertised her own products, and believed it was immediately obvious that ads (a) and (b) were ads, and therefore understood that she did not have to label them as ads.
She said that in future posts she would be happy to include “ad” within future social media posts that link to her own products, regardless of the prominence of the Hinch branding in the post.
Assessment
1. Upheld
The CAP Code stated that marketing communications must be obviously identifiable as such, and must make clear their commercial intent.
The ASA first assessed whether ad (a) was a marketing communication for the purposes of the Code. We understood that the ad featured a product that Ms Hinchliffe had designed and contained a link to a page where the product could be purchased. Because the post was in non-paid for space under Ms Hinchliffe’s control, and was directly connected to the sale of goods, we concluded that it was marketing communication that fell within the ASA’s remit.
The ad contained the text “That’s why I designed them to be in my notebook because it really helps me and I was hoping it helps you guys too”, though it did not remain on screen for long and was presented over a video at the same time as Ms Hinchliffe was speaking, and therefore could be missed. In addition, because the ad focused on the efficacy and practicality of using the mind maps, we considered that within the context of the ad, consumers would likely interpret that text to mean Ms Hinchliffe had created the mind map design within her own personal notebook, rather than having designed the notebook itself. Although we acknowledged that some consumers may have understood that she was referring to the notebook as a whole, and that the link titled “TAP HERE FOR YOURS” might have indicated a commercial relationship between Ms Hinchliffe and the notebook, we considered that it was unclear from the outset whether Ms Hinchliffe had designed the notebook. We therefore considered the commercial intent of the ad was ambiguous, and expected the post to have included a prominent label upfront, identifying it as an ad.
We noted that the ad ended with the front cover of the title “Mrs Hinch Life in Lists”, whilst Ms Hinchliffe said “In my own notebook of course”. We considered that end frame may have strengthened the viewer’s understanding that the notebook was designed by Ms Hinchliffe. However, because that additional context only appeared at the end of the ad, once consumers had engaged with it, and there was no clear and upfront identifier such as “#ad”, we considered the ad was not immediately clear as to Ms Hinchliffe’s commercial relationship with the notebook.
For those reasons, we concluded that ad (a) was not obviously identifiable as a marketing communication and did not make clear its commercial intent.
On that point, ad (a) breached CAP Code (Edition 12) rules 2.1 and 2.3 (Recognition of marketing communications).
2. Not upheld
We first assessed whether the second Instagram Story was an ad for the purposes of the Code. Similarly to ad (a), ad (b) contained a product that Ms Hinchliffe had designed and contained a link to purchase. Similarly, we considered that ad (b) was under Sophie Hinchliffe’s control, promoted her products and were directly connected to the supply of goods, and as such it was a marketing communication that fell with the ASA’s remit.
We noted that the notebook featured in ad (b) was open at a page titled “My Hinch List”, and that text in ad (b) also stated “HINCHLIST” at the top of the page and “HINCH NOTEBOOKS” at the bottom. We considered that Sophie Hinchliffe was widely known by her abbreviated name “Mrs Hinch”, and that the name was synonymous with the “Hinch” brand. Therefore, we considered that the references to “Hinch” in ad (b) made it clear that the product was part of Sophie Hinchliffe’s own range. Furthermore, we considered it was distinctly stylised like an ad in its presentation, and because it was a still image, the various references to the Hinch brand were on-screen for the entire length of the Story.
We considered that in the particular context of ad (b), the overall effect was that the Story was obviously identifiable as marketing communication for Ms Hinchliffe’s own branded notebook, without the need to be explicitly labelled with an identifier such as “ad”.
For these reasons we concluded that the post was obviously identifiable as marketing communication and did not breach the Code.
On that point, we investigated ad (b) under CAP Code (Edition 12) rules 2.1 and 2.3 (Recognition of marketing communications), but did not find it in breach.
Action
Ad (a) must not appear again in the form complained of. We told Sophie Hinchliffe to ensure that in future her ads, including those which featured her own range of notebooks, were obviously identifiable as marketing communications and made clear their commercial intent upfront, for example, by including a clear and prominent identifier such as “#ad” at a minimum. No further action necessary in respect of ad (b).
