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 ASA regulates many different types of advertising, both online and offline (see ‘Remit: General’).  One type of advertising that is subject to the CAP Code is ‘advertorial’, also referred to as ‘advertisement features’.  The Scope of the Code part III (subsection k.) defines this type of content as follows:

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 creates a two-stage test, which the ASA uses to determine whether a piece of content is ‘advertorial’ covered by the CAP Code – both stages of the test must be satisfied in order for the CAP Code to apply. Simply put, if ‘payment’ exists and the content is ‘controlled’ by a marketer, the ASA considers it within their remit and the CAP Code in its entirety will apply. This definition applies equally to ads in traditional media settings (e.g. a long-form article that look similar to the editorial content in the same publication) as well as ads in new digital media (e.g. an influencer post on a social media platform). 

It is also important to remember that consumer protection legislation ranges wider than activities which fall within the remit of the CAP Code, and applies to commercial relationships and related material in a wider arena than the ASA.  The CMA has published useful advice on this here, here and here.

To explain the ASA’s remit in more detail, here’s a look at the questions they are likely to ask themselves when considering content that is potentially ‘advertorial’;

 

Has there been any form of payment?

The first stage of the ASA’s ‘advertorial’ test is whether there has been “a payment or other reciprocal arrangement". For the ASA to consider that an ad fits this definition, money does not necessarily need to have changed hands, and the ‘payment’ doesn’t need to 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).

Even if the “payment” isn’t in cash, any mutually beneficial agreement can count as an “other reciprocal arrangement”. For example, the ASA has ruled that where brands sent free products to influencers, this counted as a payment or other reciprocal arrangement (The White Star Key Group Ltd t/a Skinny Caffe, 31 July 2019; Convits Ltd, 3 January 2018; Nomad Choice Pty Ltd, t/a Flat Tummy Tea, 5 April 2017).

If a publisher has a commercial or ‘employment’ relationship with the brand at the time when the ad appears, this can also be considered an indirect form of ‘payment’ for the ad. For example, if an influencer has been paid to be a ‘brand ambassador’ for a particular period of time, and they post about the brand during that time period, the ASA is likely to consider that there has been ‘payment’ (Platinum Gaming Ltd t/a Unibet, 7 November 2018; Genting Alderney Ltd t/a Publishers Clearing House, 9 January 2013).

Similarly, if a brand regularly advertises in a magazine and/or has agreed to pay for another advertisement at a later date, this could fit the definition of “a payment or other reciprocal arrangement".

 

Who has control over the content?

The second stage of the ASA’s test takes into account the degree of editorial control the marketer/brand exerts over the content of the feature or promotion.  

For example, 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 fall within the ASA’s remit 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 CAP 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.

Similarly, where a marketer sends out free products purely in the hope that people will choose to review them, any resulting copy would not be regulated by the ASA (though this would be covered by the CMA). However, if a marketer dictated key messages and/or provided free goods on the provision that positive content would be created, the resulting copy would be considered as falling within the ASA‘s remit.

Different factors that the ASA are likely to considered evidence of ‘editorial control’ include the following:

Whether or not the ASA considers that a brand has editorial control will depend on the specifics of their agreement with the publisher.  In one case the ASA assessed an influencer’s Instagram post and concluded that the brand had control, even though this specific post wasn’t referred to in the contract, because it still contained "the hashtags that were stipulated in the agreement for the month" when it was published (Brooks Brothers Ltd, 18 September 2019).

In another case, the ASA likewise concluded that a brand had control over an influencer’s Instagram video, because "Whilst the written contractual agreement did not make specific stipulations about the content” of the post that had been complained about, it required the influencer “to promote the brand and the products in a positive light at all times”. The video referred to the brand and was published while this contract was still in place, so the ASA considered that it was effectively an ‘advertorial’ (Warpaint Cosmetics (2014) Ltd, 03 October 2018).

So even if a brand has not had any direct involvement in the creation of a particular advertorial, the ASA can still consider that they had ultimate ‘control’ if it was published as part of a pre-existing partnership that limited the publisher’s control over the content.

 

What if it doesn’t fit the ‘advertorial’ definition?

If either of the two stages of the test (i.e. ‘payment’ and ‘control’) are not met, the material is unlikely to fall within the ASA’s remit as an ‘advertorial’. However, it may still be considered a different form of advertising, which the ASA also regulates (see ‘Remit: General’).

For example, when a publisher signs up to an affiliate scheme and includes an affiliate link or code in their copy, they are effectively acting as a secondary advertiser, since they are earning money in direct proportion to the interest they generate in a product. This means that any copy referring to the product for which there’s also an affiliate link/code will count as an ad (see ‘Online Affiliate Marketing’).

This test also does not apply to content in a marketer’s own offline space, or on their own website or social media (see ‘Remit: General’, ‘Remit: Own websites’ and ‘Remit: Social media’ for more).  If a brand promotes their own product on their own website or social media channels, it still counts as advertising – just under a different ‘category’.

Finally, it’s important to remember that when an advertiser/brand gives a ‘publisher’ a ‘payment’ or ‘other reciprocal arrangement’ to create a piece of content, that content becomes subject to consumer protection law.  This means that, even if the ASA doesn’t regulate it, the material may still be subject to regulation by another body, such as the Competition and Markets Authority (CMA) or Trading Standards. The CMA has published some advice on this here, here and here.

 

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.


More on