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 CAP Code does not define advertising. Rather, it lists categories of communication to which it applies and offers supplementary definitions and exclusions. It would be next to impossible to detail in full all of the types of marketing that the Code covers so this advice and other related remit entries should be regarded as indicative, not exhaustive, in terms of defining the many types of non-broadcast marketing communications that are, and are not, subject to the Code.
The ASA usually takes a pragmatic approach about what is and is not within its remit, but the question of whether something is covered by the CAP Code can often be informed by the potential for self-regulation to deal effectively with the matter and the ASA does not simply fill gaps left by statutory regulation.
- Publications and printed material
- Direct marketing
- Cinema, TV and Radio
- Promotional marketing
Publications and printed material
In terms of publications, like newspapers and magazines, the Code applies to the third party ads, the publisher’s own ads (such as those which promote buying ad space within the publication, including circulation claims, or which promote taking up a subscription), inserts, business classified ads (but not the private ones), and ‘advertorial’ content.
It also applies to other printed material such as leaflets (unless they promote a ‘cause or idea’), carrier bags, business cards, brochures and catalogues.
When it comes to direct marketing, the Code applies to direct mailings (addressed specifically to the recipient), emails, faxes and SMS/MMS messages. It also applies to circulars and ads sent using Bluetooth.
It does not, however, apply to private correspondence or material in non-paid for space which relates solely to a ‘cause or idea’. On the telephone, it applies to some forms of recorded message but not to live oral communications or the contents of premium rate services.
In outdoor space, the Code applies to posters on billboards, poster sites and at stations etc., but not those which appear at ‘point of sale’ (unless they include a promotion) or those which have been ‘flyposted’ (which is illegal in any event).
It also applies to third party ads in ‘paid-for’ space in ambient media including, but not limited to, vehicles e.g. taxis and buses (but not an advertiser’s own vehicles), petrol pumps, bus tickets, ATMs, projections onto buildings, supermarket trolleys, the reverse side of till receipts and beer mats.
While advertising at ‘point of sale’ or on an advertiser’s own vehicles is usually considered beyond the scope of the Code (unless it includes a promotion), if an advertiser promotes its products in a medium that would usually be sold to third-party advertisers, the ASA might consider those ads in remit. For example, if a train company places their own posters in space that would also be sold to third party advertisers, their ads might also be subject to the CAP Code.
With regard to online space, the Code applies to ads on Video on Demand (VOD) platforms and those on music streaming services. It also applies to ‘paid for’ ads like banners, pop-ups, pre-rolls, ‘pay per click’ ads on search engines (but not the ‘natural listings’) and ‘promoted’ social media posts. However, it only applies to the ‘preferential’ listings on independent price comparison websites.
The Code covers ‘advertorial’ content on news websites, in vlogs/blogs and in social media as well as business classified ads and those on third party retail platforms.
The Code also applies to claims on a marketer’s own website and in other non-paid for space online under their control (e.g. their social media accounts and apps) if they are directly connected with the supply of goods or services, opportunities, prizes or gifts. This includes ‘advergames’. As with other ‘non-paid for’ space, there is a limited exemption regarding ‘cause and idea’ marketing in the absence of a direct solicitation of donations.
Viral advertising is also covered by the Code.
Cinema, TV and Radio
The Code does apply to cinema ads (usually pre-cleared by the Cinema Advertising Association), but not to film trailers shown in the cinema.
Promotional marketing in non-broadcast media (including online) is covered by the Code and this means that some material that would otherwise fall beyond the scope of the Code can be brought back within remit by virtue of it featuring a promotion (e.g. point of sale material and packaging).
MiscellaneousThe Code does apply to affiliate marketing in whatever form this may take. It also applies to some aspects of online behavioural advertising (OBA) beyond the content of the individual ads that are served.
It does not apply to official notices or information from a public authority or the like, ‘sponsorship’, health-related claims addressed only to medical etc. practitioners, customer charters/codes of practice or the technical aspects of financial/credit marketing which are regulated by the Financial Conduct Authority (FCA).
It also does not apply to marketing communications in foreign media. In some cases complaints can be referred to a self-regulatory body in another country but if there isn’t one, the ASA will take what action it can where the material targets UK consumers.
‘Political advertising’ where the principal function is to influence voters in a local, regional, national or international election or referendum is also exempt from the Code.
Finally, as a general point, the ASA is extremely unlikely to investigate complaints about ads which, although covered by the Code, are the subject of legal action (for example, if a competitor has chosen to pursue a claim of defamation or a member of the public is trying to claim compensation). This is because the self-regulatory system is an alternative to the courts and it would be inappropriate for any action by, or correspondence from, either the ASA or CAP to influence legal proceedings or be used as part of a legal process. On rare occasions, the ASA might investigate a complaint about an ad that is the subject of legal action provided that the matter being pursued through the courts is far removed from the subject of the complaint. Competitor complainants are required, amongst other things, to assure the ASA they are not taking or contemplating legal action before a complaint will be progressed.
There are many shades of grey involved in decisions about what is and what is not covered by the Code and the considerations are not always straightforward. If marketers are in any doubt, they can seek advice from the Copy Advice team on whether their chosen medium is likely to be subject to the Code.
See also other entries on 'Remit'.