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.
Advertisements in podcasts and other audio streaming media are covered by the Non-broadcast Code (CAP Code), rather than the rules that apply to TV and radio ads (BCAP Code). This means that when ads appear during podcasts, they are subject to the same rules as ads on social media and video-streaming services. Though there are differences between audio and visual media, the requirements in Section 2 (Recognition of marketing communications) apply to both.
Whenever a brand gives a podcast publisher any kind of ‘payment’, any subsequent podcast segments that refer to the brand should disclose this, e.g. with a prominent announcement. ‘Payment’ includes any form of payment in cash or credit, giving a product or service for free, loaning a product or service for free, or any other incentive or commission. There’s more advice on what counts as payment here.
When a brand also has editorial control over the content of a podcast segment, the ASA can apply the CAP Code. If there is some form of payment but no editorial control, it will be subject to consumer protection law enforced by the Competition and Markets Authority (CMA). But in either case, ‘paid’ content need to be obviously identifiable.
To ensure that they don't break these rules, podcast advertisers and publishers should ask the following questions before publication.
What types of ads can podcasts include?
If the podcast host or platform reserves space for pre-recorded advertisements, and sells this space to advertisers, these would be considered ads that appear in ‘paid-for space’. If advertisements resemble the editorial part of the podcast, e.g. if they’re read out by the presenters, but a brand has paid for them and has some editorial control over the content, these ads would fit the ‘advertorial’ definition. And if the podcast publishers have entered an affiliate agreement with a brand, so that the podcast contains an affiliate discount code, or if the podcast refers to a product for which there is an affiliate link in the accompanying text, this material is also likely to be considered advertising under the ‘affiliate’ definition.
Though there are differences between these types of advertising, they are all subject to the CAP Code, and all need to be obviously identifiable as ads.
Who is responsible for ensuring that ads are identifiable?
When assessing complaints about podcast advertising, the ASA is likely to hold the advertisers (i.e. the brand) and the podcasters (i.e. the publishers) jointly responsible. Depending on the extent of their involvement, the podcast platform may also be considered jointly responsible. If so, all of them would be named in ASA rulings that result from the investigation. Formal rulings are published on the ASA website, and remain accessible online for five years.
Is it obvious from the context?
Podcasts are a relatively new media type, and there is a lot of variation between them. Podcasters and platforms may choose to place their ads in different parts of each episode, so the distinction between ‘editorial’ and advertising material isn’t likely to be obvious from the placement alone.
Obvious changes in sound effects, tone and subject matter, or the use of different voices, may all help consumers distinguish these commercial breaks from the rest of the podcast. However, the Code requires that ads should make it “obvious” that they’re ads, so it’s likely to breach the rules if consumers have to figure it out, or only find out in retrospect.
Is the disclosure timely?
As in other media, the most reliable way of ensuring that it’s obvious is with an explicit disclosure at the beginning, equivalent to the headers at the top of advertorials in print media, or labels placed at the start of influencer ads on social media.
Consumers shouldn’t find out in retrospect that they’re listening to an ad. This should be clear from the outset, so the disclosure (in whatever form it takes) should appear early on in the ad, rather than half-way through or at the end.
Is the meaning of the disclosure clear?
Code rule 2.3 requires that the “commercial intent” of ads should be clear to consumers. This means that it’s not enough for consumers to recognise that an ad is distinct from the main editorial segment of the podcast. It needs to be clear, specifically, that it is an ad.
Publishers and advertisers can have various types of relationships, not all of which are in the ASA’s remit. For example, a brand may sponsor a podcast without having any editorial control over what it contains. Where there’s no editorial control over references to a sponsor, this material is unlikely to be considered advertising by the ASA.
Because of this, labels such as “sponsored by [brand]”, “thanks to [brand]” or “in partnership with [brand]” at the beginning of an ad may not be considered sufficient to make clear that the material is advertising, specifically. Explicit labels such as "Ad", "Advert" or "Advertisement" have been considered acceptable in other media, and the principles outlined in CAP guidance on ‘Recognising ads: Social media and influencer marketing’ are likely to cross-apply to podcasts.
The ASA ruled that a podcast ad for Huel was not obviously identifiable, because it was only differentiated from the editorial content by the sound of a page turning and the presenter stating “Quick one” at the start and “Back to the podcast” at the end (Huel Ltd, 10 August 2022). The ASA considered that the page-turning sound effect and the statement “Quick one” were not sufficient to make it obvious that it was a segue to advertising material.
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”, “Recognising ads: Blogs and vlogs” 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.