Who: The Advertising Standards Authority (ASA), Sophie Hinchliffe t/a Mrs Hinch (Hinch) and Erim Kaur (Kaur).
Where: United Kingdom
When: 8 March 2023 & 15 March 2023
Law stated as at: 17 April 2023
What happened:
In March, the ASA published three rulings against several social media ads on Hinch’s and Kaur’s social media profiles, in relation to several alleged breaches of the UK Code of Non-Broadcast Advertising and Direct and Promotional Marketing (CAP Code):
- Two of Hinch’s social media stories featured her notebooks. The first story was alongside texts such as “If you’re a little mad like me [grinning emoji] [heart emoji] TAP HERE FOR YOURS [heart emoji]…” and the second with “HINCH NOTEBOOKS”.
- A further two stories featured Hinch’s own kitchen range. The first story was accompanied by texts such as “…Even put some “nibbles” (In my own hinch heart bowls [wink emoji] I love em) #hinchxtesco.”. The second story featured Hinch preparing a meal using a variety of different chopping boards, food storage solutions and a pan.
- Kaur’s social media stories and posts all related to her brand ByErim. The stories featured a reel showing her products with the text “BYERIM LUXURY SHAMPOO”. The post showed clips from a photoshoot for ByErim. The video began with a clip of a woman pushing a suitcase and superimposed text that stated “What it’s really like shooting a campaign for your own brand [eyes emoji]”.
These were all challenged on the grounds that they were not obviously identifiable as marketing communications. The ASA concluded the following:
- Though some of the text used in Hinch’s post and first story may have indicated a commercial relationship, the ASA considered that this needed to have been clear from the outset. As it was not clear from the beginning that she was receiving royalties, these postings also needed a clear identifier such as “#ad”.
- Similarly, though various features such as including the brand name ByErim in small print in the corner of the reels and more prominently once the reels played might have indicated that there was a commercial interest, Kaur’s stories only made this clear once the posts had been watched. There were no clear and upfront identifiers, and therefore the ads were considered ambiguous as to the commercial relationship.
Repeated references to “Hinch” in Hinch’s second story made it sufficiently clear that the product was part of her own range. The ads were also distinctly stylised like an ad in its presentation, and because still images were used, the various references to the Hinch brand were on-screen for the entire length of the story. It did not need to be explicitly labelled with an identifier such as “ad”.
As Hinch’s second story focused on the recipe and food itself instead of her own products or the benefits of using them, the ASA considered that their inclusion was incidental to the content of the video and therefore did not need an identifier. The story was about the food and not about her products.
As Kaur referenced “your own brand” in her post, the ASA considered that consumers would understand that it was a marketing communication for a brand that she had a commercial interest in. As the video played automatically, the on-screen text would be immediately visible. This made it sufficiently clear to consumers when they first engaged with the post that it was an ad.
Why this matters:
These rulings emphasise the importance of being clear and transparent. The CAP Code states that marketing communications must be obviously identifiable as such, and must make clear their commercial intent.
So what are your key takeaways?
- Commercial relationships should be made clear from the onset of an ad, and not after a viewer has finished interacting with it.
- Include a prominent label upfront, identifying it as an ad.
- Use your branding clearly and wording associating the commercial relationship prominently and throughout the ad.
- Consistently and clearly use wording such as “#ad”. Make this stand out so that it cannot be easily missed.
- If you intend to use your products for other purposes that advertising, ensure the focus is not on your products.
