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.
Most ads within newspapers and magazines, or which appear on those publications’ websites, are obviously recognisable as ads purely by virtue of their content and the context in which they appear e.g., display or box ads, inserts, wraparounds, classifieds, and online banners on websites etc. However, there are some types of ads that, due to their close resemblance to editorial content, may be less readily identifiable as advertising – this includes ‘advertorial’ or ‘advertisement features’ and affiliate marketing. This material may appear, for example, as long-form copy presented in a similar way as the editorial content within a publication/on the publication’s website, or as influencer marketing posts. Although the principles are cross-applicable, this advice article focuses on the former (see ‘Influencers’ guide to making clear that ads are ads’, ‘Recognising ads: Social media and influencer marketing’ and ‘Online Affiliate Marketing’, for advice on the latter).
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. When a brand also has editorial control over that content, it becomes subject to the CAP Code as well. There is a two-stage test for content to be considered an ‘advertorial’ under the CAP Code and therefore within the remit of the ASA. The test hinges on the concepts of payment and control and applies to both offline and online media. Further guidance on the two stage test that must be satisfied for content to fall within the ASA’s remit can be found in our advice on ‘Remit: Advertisement features’.
When a publisher signs up to an affiliate scheme, they are entering an agreement to promote products in exchange for payment, usually in proportion to the number of clicks or purchases that result from their references to the brand and its products. These clicks or purchases are counted using discount codes or URLs that are unique and attributable to each ‘affiliate advertiser’. After signing up to be affiliate advertisers, any references to affiliate linked products/services alongside their URLs/codes, are likely to be considered “directly connected with the supply or transfer of goods, services, opportunities and gifts”. As a result, the CAP Code would apply in full.
The ASA accepts that affiliate advertising content appears alongside content that’s genuinely editorial in nature when it appears in online publications. In such cases, the CAP Code would only apply to the parts that refer to the affiliate brand and its products, as well as any text that includes an affiliate link, promotional code, or other means by which a new customer or sale can be attributed to a specific affiliate. In contrast, where an article in its entirety refers to the affiliate brand or its products, the Code would apply to the article in its entirety (Associated Newspapers Ltd t/a MailOnline, 21 December 2022).
- Make clear than an advertorial is an ad
- Ensure affiliate marketing is obviously identifiable
- Remember that the spirit applies as well as the letter
- Bear in mind that the rest of the Code applies
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 rules 2.1 & 2.4. The responsibility for compliance with these rules lies with both the marketer and the publisher when it comes to ‘advertorial’ content.
It is feasible that the overall presentation and context could make it sufficiently clear that an advertorial is advertising. 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” or similar to distinguish the content from editorial material. The ASA ruled that five regional press advertorials for a government department were sufficiently clear, because each of them included a prominent label that stated “ADVERTISEMENT FEATURE FROM THE DEPARTMENT FOR WORK AND PENSIONS” (Department for Work and Pensions in association with Associated Newspapers, 06 November 2019).
In another case, ads for a government department on regional newspaper websites were found to be labelled insufficiently, and the ASA ruled that they breached the Code (Department for Levelling Up, Housing and Communities, 12 October 2022). When viewed on the desktop, the “ADVERTORIAL” label appeared at the top of a column of links to other articles. This column was on the right hand side of the page, and a line separated this column from the advertorial. Because of this, the ASA considered it wasn’t clear that the label related to the advertorial – since it could be interpreted as relating to the links that appeared below it. The author of the advertorial was described as a “Commercial Writer”, which the advertisers argued made clear that the article was an ad. The ASA disagreed and ruled that the term “Commercial Writer” did not make sufficiently clear to consumers that the article was an ad, in the absence of another prominent ad label.
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). Likewise, the ASA ruled that an advertorial on a newspaper’s website was insufficient, because the heading “Asda Partnership” didn’t adequately convey the nature of the content and wasn’t sufficiently prominent to indicate where editorial material ended and advertorial material began (ASDA Stores Ltd, 20 December 2017).
Other labels that have been ruled insufficient include “Brand Publisher”, “[Publisher] Promotion” and “Promotion” (Henkel Ltd, 13 January 2016; Greencoat Ltd t/a Natural Animal Feeds, 11 May 2016; No 1 Watson Street, 24 May 2017).
Visual or contextual signposts 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). An online advertorial was likewise considered problematic because although it stated “ADVERTORIAL” at the top of the page, the ASA ruled it was written in such small font that was likely to be overlooked by consumers (University of Law Ltd & Marketing VF Ltd, 16 November 2016).
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 t/a Sky One, 4 April 2007).
Ensure affiliate marketing is obviously identifiable
Where the content wholly concerns affiliate linked products and is entirely ‘directly connected’ to the supply of those products, the commercial nature of the content should be clear prior to consumer engagement (Associated Newspapers Ltd t/a MailOnline, 21 December 2022; Procter & Gamble (Health & Beauty Care) Ltd t/a Beauty Recommended, 27 May 2015; Mondelez UK Ltd, 26 November 2014). The most straightforward way to do so – if not otherwise clear from the context - is likely to be including an identifier, for example ‘Ad’, in the title of the article in such a way that it is clear to consumers before they click through to the content, as well as to those reading the content.
Several articles on the MailOnline website, and their corresponding ‘teaser’ links from the homepage, were judged to be advertising in their entirety as they focused wholly on affiliate linked products. While the articles included a disclaimer at the top this was judged to be insufficient, not least because the ASA considered that the phrasing “may earn an affiliate commission” was ambiguous and confusing, because it suggested that they might not receive any payment when, barring errors in the administration of the affiliate arrangement, they would receive commission for purchases made via the links (Associated Newspapers Ltd t/a MailOnline, 21 December 2022).
Where only some of the links are for affiliated products and/or not all the content is ‘directly connected’ to the supply of those products, it’s unlikely that a general identifier, for example ‘Ad’, would be necessary in the title but content related to affiliated products (and the links themselves) should be identifiable as advertising. If not otherwise clear from the context, this means highlighting the relevant content so that it is obvious prior to engagement which links and associated content are advertising within each article.
By way of some examples, placing an identifier such as ‘(Ad)’ before parts of the content that relate to affiliated products is likely to be acceptable, as it would distinguish it from the editorial content. Or stating clearly at the beginning of the content that asterisks or other equivalent identifiers set out in the article relate to ‘advertising’ (and/or that they indicate that the author will receive a small share of sales through the related link(s)) would also be acceptable. A disclaimer of this nature at the bottom of such a post is unlikely to be sufficient because there is the potential that the links and any ‘directly connected’ claims would not be considered obviously identifiable as advertising at the time they are encountered by the reader. Similarly, a generic and ambiguous disclaimer which indicates that the author ‘may’ receive a commission is unlikely to be acceptable, particularly where the specific affiliate content has not been highlighted (Associated Newspapers Ltd t/a MailOnline, 21 December 2022).
An article on the Liverpool Echo website with the headline “Currys PC World launches its incredible Black Friday 2018 deals with £600 off TVs” was found in breach. Each product name in the article included an affiliate hyperlink, from which the Liverpool Echo would receive commission for any sales generated. There was a banner at the top of the article, above the headline that stated “IN ASSOCIATION WITH REACH SOLUTIONS. Marketing solutions designed to grow your business”, which the ASA considered would be interpreted as being part of the website’s architecture rather than a feature of the story. While they acknowledged that the banner could have indicated that a financial arrangement was in place, they did not consider it sufficient to identify the content specifically as advertising, nor counteract the impression that the content was entirely editorial (DSG Retail Ltd & Reach Plc, 17 April 2019).
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 applies
Because 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.
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.
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.