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.
For the purposes of this advice, we use the term ‘third sector’ to encompass voluntary, not-for-profit, non-commercial and community organisations, charities, causes (e.g. pressure groups) and social enterprises (i.e. those that operate for a social purpose). The advice is also relevant to governmental and non-governmental entities that might be campaigning, for example, for improvements in road safety, the environment, health, lifestyle etc. Perhaps because of their objectives, the ASA and the public seem to be more tolerant of hard-hitting campaigns from the third sector. But marketing communications by charities, non-commercial or voluntary organisations and the like still need to comply with all the general and relevant sections of the Code. For example, marketers should not encourage irresponsible behaviour (Rule 1.3 and British Heart Foundation, 19 June 2002); denigrate others (Rule 3.42 and Licensed Taxi Drivers’ Association Ltd, 27 August 2008); or portray people in an adverse way (Rule 6.1 and Speak Campaign, 21 June 2006).
Third sector marketers should hold evidence for their claims and ensure that they do not mislead readers (Rules 3.1 and 3.7 and Spa Commoners, 28 October 2009; People for the Ethical Treatment of Animals, 14 October 2009, and National Society for the Prevention of Cruelty to Children, 5 August 2009). In short, the ASA will apply the same requirements to prove claims to all marketers, irrespective of the sector they come from or how well-intended the campaign is.
As well as the general Code rules, there are some that are particularly relevant to the third sector. For example, the ASA accepts that marketers drawing attention to distressing issues may feel that a degree of shock is warranted to convey their message. But marcoms should contain nothing that is likely to cause serious or widespread offence. (Rule 4.1 and Keeping Kids Company, 26 August 2009, and Barnardo’s, 20 February 2008). As well as steering clear of causing offence, marketers should not cause fear or distress without good reason and should not use shocking claims or images merely to attract attention (Rule 4.2 and The British Diabetic Association, 18 March 2009; Scope, 24 September 2008, and Barnardo’s, 20 February 2008). In all three cases, the ASA considered that the potential offence or distress was either warranted or was acceptable because of the targeting of the ad. In the case of Barnardo’s, for example, a mailing outlining childhood sexual abuse was received by an 89 year old. Because the marketer was able to show they sent the mail-shot to those who fitted their donor profile and had taken several steps to warn recipients of the distressing nature of the mailing, the ASA rejected the complaint.
So, where the subject itself is offensive or distressing, rather than the marketing communication per se, consumers and the ASA tend to be more likely to accept that a shocking approach may be justified. As with all marketing, conformity with the Code will be assessed according to the marcom’s probable impact when taken as a whole and in context. This will depend on the medium in which it appears, the audience, and their likely response. Judicious targeting is key and can help minimise the possibility of an ad being considered inappropriate for its audience. Particular care has to be taken if third sector marketers use arresting images or claims in largely untargeted media such as posters and internet sites without adequate demographic filtering. A high profile anti-smoking campaign by the Department of Health illustrates the point well. The campaign was multi-media and showed fish-hooks piercing the mouths of smokers. Although there were differences between the creative executions, the judgment of whether to uphold complaints that the images were offensive, distressing and frightening to children rested largely on targeting. The ASA concluded that, although they were not close to schools, the image was too graphic for posters. It also concluded that the TV images had not been given a sufficiently stringent scheduling restriction. By contrast, the ASA concluded that the images in the national press were suitably targeted and that the internet sites which carried the ads were unlikely to be of interest to children. The ASA therefore upheld complaints about the poster and the television ads but rejected them about the press and internet ads (Department of Health, 16 May 2007). So the lesson for marketers is that context and targeting is of great importance when using shock tactics.
Some marketers, particularly those who intend to raise awareness of sensitive issues such as death or abuse, might use models, fictitious testimonials or a combination of typical case studies. Although rule 3.45 states that “Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine”, the ASA seems to have no objection to this type of creative technique if the marketer is trying to protect confidentiality or illustrate their work or the type of people they endeavour to help. The use of any testimonial or case history should be accurate in its material details and truthful in the general impression it creates (section 3 and Speak Campaign, 21 June 2006). Readers should not be misled into believing the marcom represents one individual’s experience.
The ASA has ruled that not making clear precisely where proceeds end up could render an ad misleading. In 2009, it considered an ad seeking donations and concluded that, in the absence of information to the contrary, consumers could expect their donations to go to UK-based charities and not one based in Lithuania (The Hand of Help Ltd, 1 July 2009). The ASA has repeatedly received complaints about marketers that seem to be charities or good causes or raising money for them. This issue is particularly prevalent in the clothing collection sector and CAP has written specific advice to address this problem. See ‘Clothing Collection Services'.
Any promotion claiming to benefit registered charities or good causes should include specific information (Rule 8.33 and Food Brands Group Ltd, 7 January 2009; Danone Waters UK & Ireland Ltd, 10 September 2008, and Light Foot Promotions Ltd, 30 November 2005). Although this is covered in more detail in ’Sales Promotions: Charity Linked Promotions’, essentially promoters have to state clearly who will benefit from the promotion and how, the nature of the beneficiary (if it is not a registered charity) and not exaggerate the benefit to the recipient.
Marketers may give a view about any matter providing it is clear they are expressing their own opinion rather than stating a fact (Rule 3.6 and The Nutrition and Health Institute, (points 3 & 6) 9 April 2008). Assertions or comparisons that go beyond subjective opinions must be supported by evidence in the usual way and the ASA will expect advertisers to hold evidence in support of their claims (National Society for the Prevention of Cruelty to Children, 5 August 2009, and Keeping Kids Company, 26 August 2009).
The Code contains specific rules for obtaining, compiling and using personal data for direct marketing purposes. In addition to these rules, marketers should comply with the Data Protection Act 1998 and the Privacy and Electronic Communications Regulations 2003. Marketers wishing to find out more should see ‘Database Practice’.
For guidance on the Charities Act and any other relevant legislation, marketers might want to seek advice from the Charity Commission, the Office of the Scottish Charity Regulator, the Office of the Third Sector or other relevant body.
Furthermore, the Institute of Fundraising offers advice and guidance on best practice in fundraising, specifically in relation to their Direct Marketing and Accountability and Transparency codes.
See 'Fear & Distress', ‘Clothing Collection Services’, ‘Database Practice: General’ and specific entries and ’Charity Linked Promotions’