Two issues were investigated, of which one was Upheld and one was considered to fall outside the scope of the CAP Code.
Two Instagram Stories from influencer Mrs Hinch’s account:
a. The first Instagram Story, seen on 27 January 2022, featured heart-shaped bowls of varying sizes, some of which contained food. Text stated “On a right roll here [grinning emoji] Even put some “nibbles” (In my own hinch heart bowls [wink emoji] I love em) #hinchxtesco.”
b. The second Instagram Story, seen on 1 February 2022, showed Sophie Hinchliffe preparing a meal using a variety of different chopping boards, food storage solutions and a pan. Text in the video stated “LUNCH With LEN Leek [tick emoji] New Potatoes [tick emoji] Carrots [tick emoji] Low salt veg stock [tick emoji].
Eight complainants, who understood that the products in the ads were from Sophie Hinchliffe’s own range with Tesco, challenged whether:
1. ad (a); and
2. ad (b) were obviously identifiable as marketing communication
1. & 2. Tesco said that their relationship with Sophie Hinchliffe existed in a limited and specific capacity and that their contract with her was limited to product development and a finite number of marketing materials. Tesco also confirmed that Sophie Hinchliffe was not a brand ambassador, and that their relationship should be considered differently to cases which focused on brand ambassadors. Tesco also said that they did not have any control over the ads, direct or otherwise. For those reasons, they considered the ads to not be marketing communications by or related to Tesco.
Tesco further stated that other third-party products appear alongside the products from the Mrs Hinch range in the ads. They said that a large number of posts made by Sophie Hinchliffe were ones that documented her daily life rather than being marketing communications and considered that the average consumer would view the ads as such; for example, what Sophie Hinchliffe chose to snack on, or her life as a mother.
Both Sophie Hinchliffe and Tesco Stores Ltd confirmed that there was a licensing agreement in place with Tesco, whereby Sophie Hinchliffe received royalties for the products that formed part of her range. They also both confirmed that, whilst an agreement existed between Tesco and Sophie Hinchliffe that required her to create social media posts, ads (a) and (b) did explicitly not form part of that arrangement. They also both confirmed that agreement expired on 1 November 2021, and when the ads that formed part of that arrangement were posted, they had included a prominent “Ad” label.
Sophie Hinchliffe said that both ads were created organically and were not created as part of an obligation to market the products. She stated that no links to purchase the products on the Tesco website were included, and that she did not tag Tesco in the posts, except for in ad (a) where she had included the text “hinchxtesco”, which had been used in relation to the range previously. She also confirmed that Tesco had not seen or approved the posts, and therefore believed that Tesco did not hold editorial control over the posts. She said that for those reasons, she did not consider either to be an ad.In relation to ad (a) specifically, she said that the text made it obvious that the bowl was part of her range with Tesco, and she had included this because she was proud of the bowls. She said this post was similar to the style of content that were not ads and that she created when relaxing or cooking around the home.
In relation to ad (b) specifically, she said that the focus was on the food itself, rather than the products that were used, and the aim of the Instagram Story was to show her followers how easy and fun it could be to make a nutritious and healthy lunch. She said that the various items used were permanently situated in her kitchen and were only featured in order to prepare and cook the vegetables. She confirmed that the chopping boards, salt and pepper mills, candle holder, wok and wooden spoon were from her range of products in collaboration with Tesco. She stated that other items, including the glass bowls, ladle and blender, did not form part of that range. She also said that only those who knew of her range would be able to identify the items in the video as being part of it and that the logos were not shown prominently.
Sophie Hinchliffe said that in the future she would include an “Ad” label when showing products she had designed and that were still available to buy. She said that she would continue to do that for up to 12 months after the products had been available to purchase.
The ASA welcomed Ms Hinchcliffe’s assurance that she would include an “ad” disclaimer in all future Instagram Stories featuring products that she had designed and that were still available to buy.
The CAP Code stated that marketing communications must be obviously identifiable as such, and that they must make clear their commercial intent if that was not obvious from the context.
We first assessed whether the first Instagram Story was an ad for the purposes of the Code. We acknowledged that it did not form part of the marketing required by Sophie Hinchcliffe as set out in her agreement with Tesco. However, we understood that Sophie Hinchliffe received royalties from the sale of products within the Mrs Hinch Tesco range, and as such, had a commercial interest in the continued sale of these products. Although we acknowledged that Tesco had no direct input into or control over such ads, we nonetheless considered that as the direct beneficiaries of the marketing material, Tesco and Sophie Hinchliffe were jointly responsible for such ads and their compliance with the CAP Code. Because the content of the post promoted the Tesco Hinch range and thus directly connected to the supply of goods, we concluded the post was a marketing communication which fell within the ASA's remit.
We noted that ad (a) did not include a clear identifier such as “#ad”. We further noted that in ad (a) the focus of the image was placed on the bowls themselves, which at the time of posting were still available to purchase. We believe this focus was strengthened by the text featured in ad (a) which stated “In my own hinch heart bowls [wink emoji] I love em”. Whilst that text may have given some indication to consumers that Ms Hinchliffe had been involved in designing the bowls, it was not explicitly made clear, and we considered that it was also not clear that she received royalties from their sale. We also understood that the ad was similar in style to non-ad content created by Sophie Hinchliffe, who as a home cleaning influencer, often shared lifestyle tips on Instagram. As such, we considered that it needed to be made explicitly clear when content such as this, where she offered advice to her followers, was linked to a commercial deal that benefited her financially.
For those reasons, we concluded that ad (a) was not obviously identifiable as a marketing communication and did not make clear its commercial intent. Ad (a) breached CAP (Edition 12) rule 2.1 and 2.3 (Recognition of marketing communications).
2. Not upheld
We first assessed whether the first Instagram Story was an ad for the purposes of the Code. Similarly to ad (a), ad (b) did not form part of the marketing required by Ms Hinchcliffe as set out in her agreement with Tesco and she received royalties from the sale of products within the Mrs Hinch Tesco range.
We noted that ad (b) featured several products from the Hinch range, such as a chopping board and frying pan, and that these were also available to purchase at the time of posting. However, we considered that the focus of ad (b) was not on the products or the benefits of using them, but on the recipe and food itself. We noted that the products were not commented upon and, therefore, we considered that their inclusion was incidental to the content of the video. Furthermore, we considered that the heart symbol, synonymous with the Hinch Tesco range, was not given undue emphasis in ad (b). We also understood that other products with no connection to the Hinch range exclusive to Tesco, such as the blender and glass storage solutions, were featured in the ad. We considered that those products were as prominent in the Instagram Story as the products from the Hinch range. Given that, we considered that the post was not directly connected to the supply of the products in the ad.
For those reasons, we concluded that ad (b) was not an ad for the purposes of the Code, and therefore was not required to be obviously identifiable or labelled as an ad.
The post was considered to fall under CAP Code section II(q) (Scope of the Code), meaning the Code did not apply to it.
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 Hinch range, 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.