Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Section 2 of the CAP Code requires that marketing communications are obviously identifiable as such. Most ads and other marketing communications are obviously recognisable as advertising purely by virtue of their content and the context in which they appear e.g. display ads in newspapers, ‘promoted’ posts on social media, leaflets, etc. One type of advertising that, due to its close resemblance to editorial content, may be less readily identifiable is ‘advertorial’ or ‘advertisement features’. This material may appear, for example, as long-form copy presented in a similar way as the editorial content within a publication, or as influencer marketing posts.
When an advertiser gives a publisher a ‘payment’ or an ‘other reciprocal arrangement’ (e.g., any form of monetary payment, loan of a product/service, any incentive or commission or a product/service has been given free), to create a piece of content - that content is likely to become subject to consumer protection law and require disclosure as advertising. When a brand also has editorial control over that content, it becomes subject to the CAP Code as well. For more on the circumstances in which the ASA could potentially take action under the Code, see “Remit: Advertisement features”.
The requirement to make ads ‘obviously identifiable’ applies equally in traditional media settings (e.g., a long-form article that looks like the editorial content in the same publication) as well as ads in digital media (e.g., an influencer post on a social media platform). Wherever the content appears, the same principles apply and it is the responsibility of advertisers and publishers to cross-apply these principles as soon as they start using a new platform or format. The ASA will continue to apply the same media-neutral rules within the CAP Code and regulate new mediums in the same manner as current media.
- Is it clear to consumers that it’s an ad?
- Which other Code rules apply?
- What if it isn’t covered by the CAP Code?
Is it clear to consumers that it’s an ad?
Advertisement features should be designed and presented in a way that makes them stand out from the surrounding content, so that it’s easy for consumers to recognise what is and isn’t advertising. The elements that make an ad obviously identifiable will vary depending on the medium and where it appears. Irrespective of the media or platform, it needs to be easily identifiable to consumers if they’re looking at an ad.
Advertisement features are usually designed to resemble the editorial style of the ‘publication’ in which they appear. However, they still need to be obviously recognisable as marketing communications to comply with rules 2.1 & 2.4. The responsibility for compliance with this rule lies with both the ‘marketer’ and the ‘publisher’.
Where the overall presentation doesn’t make sufficiently clear that it’s an advertisement, as opposed to regular editorial content, a label is a straightforward way of indicating this to consumers. The CAP Code specifically refers to “Advertisement Feature” as an appropriate label for ‘advertorial’ content. The labels “Ad”, “Advert”, “Advertising”, “Advertisement”, “Ad Feature” and similar are all very likely to be considered acceptable labels if they are displayed upfront in a prominent and easily noticeable place. Because the term “sponsored” is open to varied interpretation, we would generally advise against using this label to refer to advertising content.
The ASA’s research on labelling influencer marketing found that people struggle to identify when social media posts are ads - but the more noticeable the label, and the more its meaning is understood to refer to advertising, the more consumers are able to tell when an ad is an ad. As a result, at minimum, the ASA expects all advertisement features to include a prominent label upfront that makes it clear that the content is advertising.
For further guidance on making it clear in different media, see;
- Recognising ads: Newspapers and magazines
- Recognising ads: Social media and influencer marketing
- Recognising ads: Native advertising
- Online affiliate marketing
- Influencers’ guide to making clear that ads are ads
Which other Code rules apply?
If marketing material falls within the ASA’s remit, it has to comply with the Code in its entirety. It therefore should not, amongst other things, materially mislead consumers or cause serious or widespread offence.
Some sections within the CAP Code are sector-specific, which means that ads for particular product types (e.g. Foods, Alcohol, Gambling) must comply with very specific rules, whereas other parts of the Code (e.g. Misleading Advertising, Harm and Offence) apply to all ads irrespective of the product/service they are advertising.
What if it isn’t covered by the CAP Code?
It’s important to remember that this material, with or without editorial control by the brand, may still be subject to regulation by another regulatory body, such as the Competition and Markets Authority (CMA) or Trading Standards Services.
If the content doesn’t fit any of the definitions in the CAP Code, but it’s still been paid for in some way, the CMA requires that this should be indicated to consumers. The CMA has published advice on this here and here.
See also “Recognising ads: Overview”, “Remit: Social media”, “Remit: Advertisement Features”, “Online Affiliate Marketing”, "Recognising ads: Advertisement features". "Recognising ads: Newspapers and magazines". "Recognising ads: Social media and influencer marketing”, “Recognising ads: Brand-owned and paid social media” and "Recognising ads: Native advertising".
The CAP Advertising Guidance notes on ‘Advertisement features’ and ‘Recognition of advertising: online marketing to children under 12’, as well as the ‘Influencers’ guide to making clear that ads are ads’, also provide further guidance.