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.
The Scope of the Code states that it applies to advertorials and part III (subsection k.) defines this as “an advertisement feature, announcement or promotion, the content of which is controlled by the marketer, not the publisher, that is disseminated in exchange for a payment or other reciprocal arrangement". This material usually appears as long-form copy presented in a similar way as the editorial content within a publication.
There is a two stage test for content to be considered an advertorial. The test hinges on the concepts of payment and control and applies to both offline and online media (including vlogs/blogs, social media posts, etc.).
If ‘payment’ exists and the content is ‘controlled’ by a marketer, the ASA would consider that material within its remit and rule 2.4 would apply, meaning the fact that the advertorial is a marketing communication must be made clear.
However, if either of the stages of the test are not met, the material is unlikely be considered within the scope of the CAP Code (unless it is ‘advertising’ under another definition). However, this doesn’t mean that the material wouldn’t be subject to regulation by another body, such as the Competition and Markets Authority (CMA) or Trading Standards.
Please note that this guidance is not intended to apply to content in a marketer’s own offline space, or on their own website or social media (see ‘Remit: Own websites’ and ‘Remit: Social media’ for more).
- Take into account whether there has been a ‘payment’
- Consider who has editorial control over the content
- Make clear that an advertorial is an ad
- Remember that the spirit of the Code applies as well as the letter
- Bear in mind that the rest of the Code applies
Take into account whether there has been a ‘payment’For the first stage of the test, money does not necessarily need to change hands and the payment need not be financial, though a requirement to create content in order to receive payment would clearly satisfy the first stage of the test (Alpro (UK) Ltd, 21 September 2016).
Any mutually beneficial agreement made in place of direct payment may be considered an ‘other reciprocal arrangement’. For example, a bus company might advertise in a newspaper in exchange for the newspaper being given space to advertise on the bus-sides. Similarly, a magazine might give a significant amount of editorial space to an advertiser that places an ad in the magazine or run an ad free of charge if the marketer agrees to pay for another advertisement at a later date. A brand might also give free items or gifts to a publisher in lieu of a financial payment.
Consider who has editorial control over the content
The second stage of the test takes into account the degree of control the marketer exerts over the content of the feature or promotion. A good benchmark is whether the marketer has final approval of text and any visuals used.
For example, a company might provide information to a journalist that is then used as the basis for an article, or a publication might ask for a fee to reproduce a photograph or cover a story, but neither scenario would necessarily make the resulting article an advertorial within the remit of the CAP Code.
If a travel journalist was given an expenses-paid holiday by a travel company in the hope that a favourable article would be written, the resulting article would not be considered an advertisement feature if the company had not agreed its content. However, if it was subject to the company’s approval prior to publication, the copy would be subject to the Code. Also, if a brand sponsors an event which is newsworthy and journalists decide to write about it of their own accord, this is genuine editorial rather than advertising covered by the CAP Code.
Where a marketer sends out samples purely in the hope that people will choose to review them, any resulting copy would not be considered an advertorial. However, if marketers dictated the copy and provided free goods on the provision that content would be created, the resulting copy would be an advertorial.
If a brand requires that they have sight of the material prior to publication (allowing them to make changes), restricts the publishers ability to refer to competitors, provides ‘key messaging’ and retains the copyright and other intellectual property rights over the content, the ASA is likely to consider there to have been ‘editorial control’ by the brand (Alpro (UK) Ltd, 21 September 2016).
Similarly, the ‘publisher’ being provided with a detailed ‘brief’ or the content being subject to prior agreement with the brand’s marketing team, is likely to be considered ‘editorial control’ by the brand (Mondelez UK Ltd, 26 November 2014; Nike (UK) Ltd, 20 June 2012).
Make clear that an advertorial is an ad
Advertisement features are usually designed to resemble the editorial style of the publication in which they appear but they should nevertheless make clear that they are marketing communications to comply with rule 2.4. The responsibility for compliance with this rule lies with both the marketer and the publisher.
It is feasible that the overall presentation and context could make it sufficiently clear. For example, a situation where the content did not resemble the usual editorial style of the publication, was bordered by a blue box in a way that editorial content would not ordinarily have been, and contained nothing that could suggest it had been produced by anyone other than the advertiser, was considered obviously identifiable without the need for any additional labelling (Hayward & Co, 30 January 2013).
Where the content does resemble the editorial style of the publication, the most straightforward way to make it sufficiently clear is to include a prominent header along the lines of “Advertisement”, “Advertisement Feature”, “Promotional Feature” or similar to distinguish the content from editorial material (National Federation of Cypriots, 22 November 2006).
Using terms such as “sponsorship”, “sponsored content” and “in association with” to describe an ad feature is unlikely to be acceptable. Following an ASA challenge, the ASA ruled against an ad that was included in a “sponsored section” of a website and labelled as “in association with”, considering that the labels in themselves did not make clear the commercial nature of the content (Michelin Tyre plc and Telegraph Media Group Ltd, 30 December 2015).
Other labels that have been ruled insufficient include “Brand Publisher”, “[Publisher] Promotion” and "Thanks to [brand] for making this possible" (Henkel Ltd, 13 January 2016; Greencoat Ltd t/a Natural Animal Feeds, 11 May 2016; Mondelez UK Ltd, 26 November 2014).
Visual or contextual signposts would also need to be sufficiently prominent and clear prior to engagement with the content. An advertisement feature for Flora Proactive was judged to breach the Code because the overall impression was that it was an article written independently by a Telegraph journalist. Although it included a signpost, this was on the far right-hand side of the webpage above listings for other cholesterol-related articles, with a line dividing that part of the page from the advertorial and the ASA ruled that it was not clear that the heading related to the ad (Unilever UK Ltd, 2 November 2011).
Similarly, a double-page regional press ad was ruled to breach the Code because while it contained "ADVERTISEMENT FEATURE" in bold at the top of each page in slightly larger font than the main body of the ad, when considered in relation to the size of the ad as a whole and the other text within the ad, it was not sufficiently prominent to make the material obviously identifiable as advertising (John Collins, 2 April 2014).
Also, an article on a website which featured a banner at the top stating “BREAKING NEWS” and the headline “[Location] Officials Urge Residents To Carry This With Them At All Times” was judged to breach the Code. Although it included the word “advertorial” at the top of the ad, above the banner in a small font, and also text at the foot of the ad which stated “THIS IS AN ADVERTISEMENT AND NOT AN ACTUAL NEWS ARTICLE, BLOG, OR CONSUMERS PROTECTION UPDATE”, the ASA considered that consumers were likely to overlook both labels and that they were not sufficiently prominent to counter the initial impression that the content was a genuine news article (Shadowhawk Tactical LLC, 21 December 2016).
Marketers should not assume that readers’ familiarity with ad campaigns in other media will mean that they will automatically distinguish an advertisement feature from editorial content. Even if the advertisement feature appears in a format that is commonly used for advertisement features (such as a newspaper wraparound), marketers should not assume that readers will automatically recognise it as such (British Sky Broadcasting Ltd Sky One, 4 April 2007).
Remember that the spirit of the Code applies as well as the letter
In 2009 the CAP Monitoring team noticed that one national newspaper was routinely publishing what appeared to be full-page features for various products. The top half of the pages were presented as an article containing information about a product, including efficacy claims (which would have been prohibited in advertising). The bottom half of the pages featured an ad that contained information on where that same product could be bought.
CAP were concerned that the top half of the page was controlled by the advertiser rather than the publisher and as such should have been identified as an advertorial. Although the publisher argued that they showed the finished text to the advertisers only to check for inaccuracies, and said they were not permitted to alter the text in any way, the ASA noticed that the articles were uniquely favourable to the product featured in the accompanying ad and appeared in the same, or a substantially similar, format on different dates.
The ASA concluded that the information presented in the articles complemented and added to the information provided in the ads, and the average reader would have therefore been likely to have understood the entire page to be a feature on the product, no matter the distinct styles of the top and bottom of the pages. They therefore considered that by using that approach, the publisher and advertiser were intentionally attempting to circumvent the Code (Express Newspapers & Goldshield Ltd, 12 August 2009; Express Newspapers & Orthotics Online Ltd, 12 August 2009; and Express Newspapers & LadyCare Lifetime Ltd, 12 August 2009).
Bear in mind that the rest of the Code appliesBecause advertorial material falls within the scope of the CAP Code, all of the relevant rules will apply to the content and it therefore should not, amongst other things, materially mislead consumers or cause serious or widespread offence.
See also “Recognising ads: Overview”, "Recognising ads: General", “Video blogs: Scenarios”, “Celebrities”, “Affiliate Marketing”, "Recognising ads: Social media”, “Recognising ads: Blogs and vlogs” and "Recognising ads: Contextually targeted branded content".
The CAP Advertising Guidance note on Advertisement Features also provides further guidance.
Updated 30 December 2016