There were two ASA rulings this week investigating Sophie Hinchliffe (AKA Mrs Hinch) for not clearly disclosing that her Instagram posts were promoting her own brands. Both rulings were partly upheld.
Each of the two rulings focuses on two Instagram Story posts (so four Story posts investigated in total).
The first ruling relates to two posts for Mrs Hinch's notebooks, available at a range of outlets.
The second ruling relates to two posts featuring Mrs Hinch's kitchenware range, exclusive to Tesco.
I first need to do a (hopefully!) quick breakdown of the rulings so you can see what the posts were about and what the ASA's decision was on each one...
The Notebook investigation
Story 1 (upheld)
This video, with voiceover, focused on a notebook that Mrs Hinch had designed. A "Tap here for yours" link led to the Amazon page where the notebook could be purchased.
The ASA confirmed it was an ad: it featured a product that Mrs Hinch had designed and contained a link to a page where the product could be purchased. The post was in non-paid for space under Mrs Hinch's control, and was directly connected to the sale of goods.
So yes, it's technically an ad. The question is then whether or not it is clear to consumers that it is an ad?
The ASA considered that it was NOT clear. They said it was not clear from the outset that Mrs Hinch had designed the notebook and there were no obvious identifiers such as #AD.
Story 2 (not upheld)
The ASA said this post was an ad for the same reasons as Story 1. It also believed that this post was "styled" like an ad. The post contained references to "HINCHLIST" and "HINCH NOTEBOOKS" at the top and bottom of the page and to "My Hinch List". These brand indicators stayed on-screen.
So, even though there was no obvious identifier such as #AD, the ASA considered that it would be clear to consumers that this was an ad. No further action required!
The Kitchenware investigation
Story 3 (upheld)
This was a post that focused on a heart-shaped bowl, which was part of the range that Mrs Hinch had helped to design for Tesco. She receives royalties from Tesco for sales of the bowl but this post was outside-of-contract (I explain outside-of-contract and added-value posts in this blog).
The ASA considered this was an ad for the same reasons as Story posts 1&2
But the ASA felt this video was styled more like one of Mrs Hinch's organic posts (e.g. like those related to cleaning) and even though it did make clear that she was involved in designing the bowl, it would not be obvious to anyone watching the Story that she received commission on purchases. Because that commercial relationship was not clear, the ASA upheld the complaints.
Story 4 (not upheld)
The ASA said that this post, which showed Mrs Hinch preparing a meal using a variety of different chopping boards, food storage solutions and a pan, was NOT an ad.
So why did the ASA decide that? After all, Mrs Hinch does receive royalties from some of those products. The ASA said the focus of the ad was not on the products (which were not commented upon), but on the recipe, and other products for which Mrs Hinch did not receive any commission, were also featured just as prominently.
Because the ASA said this post was not an ad, it did not breach their rules and the complaints were not upheld.
Analysis
Let's start with what is clear from these rulings:
If an influencer is promoting their own brand or a brand that they receive commission from, in a social media post, they must make clear that there is a commercial incentive.
A simple and ASA-compliant way of making clear that commercial connection/incentivisation is to use a label such as AD or #AD.
Moving on to the questions that are raised by this (and similar) investigations:
Where does the ASA draw the line between organic and commercial content? How do they decide whether a post is promoting a product/service or merely "incidentally features" it?
We have some clues in Story 4. The ASA uses the word "focus" to determine whether post that features a product (for which their is a commercial relationship) is an ad or not. This suggests that it's entirely possible to include these types of products in the post, provided that not too much emphasis is placed on them - they must be incidental to the ad. The problem, of course, is that whether something is the focus or not can be highly subjective. It could also be easy to manipulate - "oh I want to promote this gym wear - I'll just do a couple of quick squats in a Reel and that's an exercise video, right?". Hmm, as you can tell, I'm not convinced about this. I know it might seem OTT but a solid rule such as "if you can see a paid-for/gifted product then it's an AD" is more practical. If you didn't feel that "AD" truly encapsulated the nature of the relationship, there's still scope to explain that in the captions.
Under what circumstances would the ASA say that a paid-for/gifted post was clearly an ad, in the absence of a disclosure label?
This is tricky ground. The ASA likes #AD. I like #AD. I am #AD! But if you really really don't want to use #AD (or AD, or advert, or advertisement) then yes, technically, it appears that you can make a post so obviously an ad that you don't need a disclosure label (you still might be breaking the platform rules, though, more on that here). That's certainly the case in Story 2. So what made this post look like an ad?
Well firstly it helped that the product includes the influencer's name. And that that name featured prominently throughout the video (start, middle and end). The ASA also pointed out that the post was "styled" like an ad. So if it looks significantly different to your organic content and is more salesy, then that's a helpful indication too.
There's another recent ASA ruling, against the creator Erim Kaur, that sheds some light on the types of posts that are so clearly ads that they don't require a disclosure label. In this case the ASA considered that the caption "What it’s *really like* shooting a campaign for your own brand” when placed at the start of the video, was a clear indication that the video was an ad for the creator's own brand (so no #AD needed). That seems fair enough. It also helped that the caption tagged the "ByErim" brand.
Can I stop using #AD or the platform paid promotion tool?
Most platforms require you, under their terms of service, to use the appropriate tool to indicate if you are posting branded content. So no, you should not stop using that tool for any posts that could be classed as branded content. This is what Meta has to say about influencer content on Instagram:
As a creator, if your content promotes any products or services and you were paid to include them, or even if you received the product for free, that means you’re being paid to share branded content.
If there are multiple products mentioned, even if you were gifted or received payment for only some (but not all) of them, the post is still branded content.
That last line is crucial. Unlike the implication of the ASA's reasoning in Story 4, Instagram requires you to disclose even where the commercial relationship may not be the focus of the ad.
But could you stop using a disclosure label like #AD? I think you'd need to be very, VERY confident that the post, from start to finish, would clearly be interpreted as an ad. Consider the style, captions, text, voiceovers and images as a whole. If there's any chance of confusion or ambiguity, stick with #AD.
Do I still need to use a disclosure label if I include a voucher code or affiliate link?
I guess the real question being asked is whether or not consumers know or realise that some voucher codes mean the influencer is incentivised to include that Code (e.g. because they receive payment from the brand for every sale). The ASA commissioned research on exactly this type of question in 2019. The results showed that even brand ads which included product shots, brand names, logos, discounts and call to action (a ‘Shop now’ button) were not identified as definitely advertising by a notable proportion of participants.
So the answer is still a "no". But it should be noted that that research is 4 years old (a long time in social media!). Is it still the case that most consumers wouldn't identify e.g. a voucher code that included the influencer's name, as an affiliate link? And would those consumers still not realise that an affiliate link means there is a commercial incentive to include it i.e. that this is not an organic post, but an ad?
Alongside the research, previous ASA rulings and CAP guidance on influencer marketing, the ASA would consider what the average consumer would understand by the post.
The likely effect of a marketing communication is generally considered from the point of view of the average consumer whom it reaches or to whom it is addressed. The average consumer is assumed to be reasonably well-informed, observant and circumspect.
It's so important to remember, though, that an average consumer is not necessarily a follower of that influencer. It could be someone who was fed the post via their "For You" page or someone who followed a link or was scrolling other related content. How do these people interpret organic v paid-for posts?
Where does this leave creators who want to promote their own brands?
Ultimately, it's the ASA Council that decides whether an ad is misleading or not, whether it is clearly disclosed or not or even whether it is an ad or an organic post. The ASA executive recommends a course of action (upheld or not upheld) but the Council has the final say. It's therefore hugely important that they understand and represent the average consumer who uses social media and interacts with influencer content. Their decisions underpin and are relied upon to create CAP guidance, so it's important that every ASA ruling is well-considered and follows a path that doesn't lead to industry confusion.
CAP is currently updating it's guidance for influencers (due imminently!) so I hope to find some answers to these questions in their new resources.
Why would the ASA investigate complaints that are clearly submitted by trolls?
I have lots of sympathy for influencers that are unfairly trolled and sadly, once you reach a certain level, it's pretty much guaranteed that negativity will follow. The ASA discourages spurious complaints and will only consider those that legitimately relate to a breach or potential breach of the CAP Code. And it really doesn't matter if a troll army is mobilised - the number of complaints is not usually a factor as to whether the ASA will investigate an influencer post or not. What matters is whether they are raising a legitimate question about whether the post is misleading or harmful. I appreciate, however, that the chances of identifying even the tiniest of mistakes are much higher if there are legions of trolls waiting for you to mess up. So yes, that's partly why we tend to see more investigations into reality TV celebs, Love Islanders and other high profile content creators. But it's not the only reason. The ASA knows that the higher the profile of the influencer, the more likely that the press and media will pick up on the story. So it's a deliberate (and cost effective) tactic to get the message across e.g. that the ASA wants influencers to use #AD.
If your brand or agency would like training or bespoke guidance on the rules for influencer marketing, contact Rupa using the webform or connect with me on LinkedIn. And for influencers, check out the new Influencer Legal 101 e-course.
