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.
On 1st October, we will be holding our Influencing Responsibly event, a training event on the rules for influencers, creators and bloggers.
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 definition applies to content on social media (and other online space, including blogs and vlogs) as much as it does to offline space like newspapers and magazines. Further guidance on the two stage test that must be satisfied for content to be considered an advertorial can be found in our advice on ‘Recognising ads: Advertisement features’.
Our advice on ‘Video blogs: Scenarios’ also gives further guidance on different types of scenarios where content creators and brands might work together, when this is likely to be considered advertising and potential approaches to making clear that the content is a marketing communication.
- Make sure the content is obviously identifiable
- Take into account differences between platforms
- Remember that the rest of the Code applies
Make sure the content is obviously identifiable
It’s often clear from where ads appear and/or the overall nature of the material what they are. For example, ‘paid-for’ advertising on social media websites and apps, such as ‘Promoted’ tweets on Twitter and ‘Sponsored’ posts on Facebook, are usually obviously identifiable through the positioning and the conventions each platform has for displaying advertising.
When it comes to social media, because consumers have less experience with some forms of advertising in this space, and advertorial content in particular is often difficult to distinguish from genuine user generated content, marketers (and ‘publishers’) should pay particular attention to ensuring that marketing communications are obviously identifiable as such. It may be that in some cases the inclusion of a clear identifier (for example, ‘#ad’ or similar) is the most straightforward way to achieve this. However, it is not impossible for the content and context of a post to make clear that it is advertising without the need for additional labelling.
An advertorial tweet by Gemma Collins, on behalf of Toni and Guy, which made reference to her satisfaction with their service and offered consumers a discount but did not contain a clear identifier (for example, ‘#ad’), was ruled to breach the Code because it was not obviously identifiable as marketing communication (Toni and Guy (Lakeside) Ltd, 11 July 2012).
A tweet from Keith Chegwin regarding a sales promotion for Publishers Clearing House that he was contractually obligated to promote and which stated "Just a quickie: Log on to pchprizes.co.uk 4 Your chance 2 win £100k plus Win £2,500 a week 4 life. Have a go X" was also ruled to breach the Code because, in the absence of an identifier such as #ad it was not obviously identifiable (Genting Alderney Ltd t/a Publishers Clearing House, 9 January 2013).
Similarly, a tweet from AJ Odudu which stated “FAVE summer snack vibes @Alpro_UK … #Alpro #GoOn”, and included a close-up photo of a blackcurrent Alpro Go On pot in her hand was judged to breach the Code because it was presented in a similar ‘voice’ to Ms Odudu’s other tweets and did not include any clear identifier, such as “#ad”, to demarcate it from her own content. Although it contained the advertiser Twitter handle and campaign hashtags, the ASA did not consider that this alone would make clear to consumers the commercial intent or the editorial control exercised by the advertiser and that it therefore was not obviously identifiable as a marketing communication (Alpro (UK) Ltd, 21 September 2016).
Two ads for Nike posted on Twitter by Jack Wilshere and Wayne Rooney which set out their resolutions for 2012 and included the hashtag ‘#makeitcount’ and the URL ‘gonike.me/makeitcount’, but did not contain a clear identifier or make any other reference to the advertiser, were also judged to breach the Code because the footballers concerned posted personal messages as well as marketing communications resulting from their sponsorship deal with Nike, and as such the tweets in question did not make sufficiently clear that they were marketing communications (Nike UK Ltd, 20 June 2012).
On the other hand, a further tweet from Wayne Rooney on behalf of Nike which stated "The pitches change. The killer instinct doesn't. Own the turf, anywhere. @NikeFootball #myground pic.twitter.com/22jrPwdgC1" was considered acceptable due to the content of the tweet in conjunction with "@NikeFootball" and "#myground" meaning the tweet was obviously identifiable as a marketing communication (Nike (UK) Ltd, 4 September 2013).
Also, a series of tweets from Rio Ferdinand and Katie Price where the first four tweets contained out of character comments followed by a fifth ‘reveal’ message that showed an image of the celebrity with a Snickers chocolate bar and the text “You’re not you when you’re hungry @snickersUk #hungry #spon” was judged to be acceptable. The ASA considered that the combination of the timing (all posted within the space of about an hour), the content and the context of the campaign was sufficient to make clear the tweets were advertising (Mars Chocolate UK Ltd, 7 March 2012).
Although these examples make explicit reference to the use of “#ad”, the ASA is not prescriptive and this is not the only identifier that could potentially be considered acceptable (though it is arguably the most obvious). Marketers should however be aware that “#sp”, “spon” and similar, are unlikely to be considered sufficiently accurate for advertorial content on social media because ‘sponsored content’ is different from advertorial content, where an advertiser has editorial control (Britvic Soft Drinks Ltd, 18 November 2015; Michelin Tyre plc and Telegraph Media Group Ltd, 30 December 2015).
Take into account differences between platforms
Marketers (and publishers) need to take care to ensure that the content is obviously identifiable to all consumers who encounter the material prior to engagement and should bear in mind any limitations and technical ‘quirks’ on the platform they are using (e.g. any limits on the number of characters, how much is visible and the fact that some social media sites cut off text placed after hashtags or other non-alphanumeric characters).
On Twitter, as space is limited, including “Ad” (or similar) somewhere in the tweet is likely to be the clearest way of identifying it as advertising. Similarly, on Pinterest where the amount of content actually controlled by the ‘pinner’ is limited, placing “Ad” or similar at the beginning of the free text ‘Description’, because only a small portion of this appears without clicking, is likely to be acceptable.
Where there is no character limit, for example on Facebook, it is likely that most posts will need to include an identifier at the beginning, though very short posts may be considered acceptable if the identifier is placed at the end of the text.
In contexts where only an image is (initially) visible, such as Instagram, it is likely that an identifier should be included on the image itself, as well as in the accompanying post. This is also true of videos in this space which should make their commercial intent clear prior to engagement i.e. before consumers click through/watch the video (Britvic Soft Drinks Ltd, 18 November 2015).
Remember that the rest of the Code appliesBecause advertorial content falls within the scope of the CAP Code, all of the relevant rules will apply and it therefore should not, amongst other things, materially mislead consumers or cause serious or widespread offence.
See “Recognising ads: Overview", "Recognising ads: General”, “Video blogs: Scenarios”, “Celebrities”, “Affiliate Marketing”, "Recognising ads: Advertisement features”, "Recognising ads: Blogs and vlogs” and "Recognising ads: Contextually targeted branded content".
Updated 30 December 2016