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 overarching requirement in Section 2 of the CAP Code is that all advertising needs to be obviously identifiable as such. This means that when a consumer sees an ad, it should be obvious to them that they are looking at an ad. This can sometimes pose a challenge for advertisers when it comes to younger children, whose cognitive development is in its early stages. This guidance explains how the rules apply in relation to children, particularly those under the age of 12.
Critical understanding allows people to properly assess commercial messages contained in marketing communications. Broadly, it is an individual’s ability to:
- recognise a marketing communication (its format and appearance); and
- understand the commercial intent behind it (the attempt to persuade them of something).
Overall, children begin to develop the ability to recognise marketing at a very young age and have reasonably well-developed levels of critical understanding from the age of around 8 years. By the age of 12, children approach adult levels of critical understanding. However, younger children still struggle with significantly integrated and highly immersive marketing in online environments.
When a marketing communication is directed at under-12s (through the selection of media and/or the content), highly immersive or significantly integrated into the surrounding editorial content and unlikely to be identified clearly from the context in which it appears, it will require enhanced disclosure. This means disclosures should be prominent, interruptive, and adequately indicate the commercial intent.
- What counts as “highly immersive” or “significantly integrated”?
- What do you mean by “enhanced disclosure”?
A “highly immersive” marketing communication features prolonged or in-depth interactivity, principally, game play or narrative such as that of a story in audio-visual content.
A “significantly integrated” marketing communication is visually or otherwise integrated into the surrounding editorial content or context, for example, a display ad that looks as if it is part of the surrounding content. The usual separations between advertising and other content – spatial and/or thematic – are absent.
Examples include, though are not limited to;
- paid and controlled product endorsements by an influencer (e.g. a vlogger or blogger);
- branded video content on third party sites (where the video has the effect of promoting products or a brand);
- marketing communications appearing in virtual online worlds and other games;
- display advertising or other types of advertising that is, by its nature or design, not clearly separated from the surrounding content; and
- advertiser-created games appearing on third-party websites.
Enhanced disclosures should be prominent, interruptive, and sufficient to identify the marketer and the commercial intent. This means the disclosure should be:
- within or directly next to the marketing communication;
- of significant size and colour to stand out; and
- readily apparent before (if possible) or immediately at the point of engagement.
Disclosures should both make clear who the marketer is and adequately indicate the commercial intent.
ASA rulings suggest that enhanced disclosure should not blend in with the rest of the ad and that using a colour palette and font that matches the style of the rest of the ad does not make the disclosure sufficiently prominent or interruptive enough.
The ASA ruled against a banner ad for Capri Sun in the “Games” section on Nick.co.uk, despite references to the brand and an orange ad label with white text stating “ADVERTISEMENT” on the thumbnail (Capri Sun GmbH, 15 June 2022). The ad was formatted identically to the surrounding editorial content and was significantly, visually integrated to the extent that the ASA considered that it would be unlikely that children would be able to identify the content as an ad from the context in which it appeared.
While they acknowledged that the label was in capitals and a slightly larger font, they considered that the use of a colour palette that matched and blended with the overall ad colours did not make the disclosure sufficiently prominent or interruptive enough. In addition, there were other editorial content tiles with ad labels, which meant it would be difficult, especially for younger children, to understand the difference.
They also acknowledged that the name of the marketer was identified within the ad. However, because it was incorporated within the ad graphic itself and presented in a colour palette and style which matched the ad, this was not considered prominent or interruptive enough for young children to identify the marketer.
The ASA also ruled against banner ads for Cry Babies toys and VIP Pets toys on NickJr.co.uk despite featuring ad labels with the text “ADVERTISEMENT” and references to the brands (IMC Toys UK Ltd t/a Cry Babies, 15 June 2022; IMC Toys UK Ltd t/a VIP Pets, 15 June 2022). The ads were both positioned alongside other ads and tiles linking through to games, all of which were formatted identically, and whilst the labels were in capitals and centrally located, the font size was not particularly prominent and the use of colour palettes that matched the ad graphics had the effect of blending the disclosure with the ads. Therefore, the ASA concluded that they did not make the disclosures sufficiently prominent or interruptive enough.
Similarly, because the names of the marketers were incorporated within the ad graphics and presented in colour palettes and styles which matched the ads, they did not consider the references sufficient to enable young children to easily identify the commercial intent behind them. Although the landing pages did carry clear disclosures by the marketer, using terms outlined in CAP guidance, the ASA concluded that even ads which are limited by space require labels to be sufficiently prominent and immediate within the ads themselves, to distinguish them from non-advertising content around them.