A banner ad for Capri Sun, seen in February 2022, in the “Games” section on Nick.co.uk. The ad featured a cartoon image of an orange Capri Sun drink bottle dressed as a superhero flying above a cityscape. The ad contained a search light beam with text “Capri Sun” projected within the beam. An orange ad label with white text “ADVERTISEMENT” was in the top-right corner. Below that were three blue filled burst shapes with text “Capri Sun” in white. A semi-transparent black banner across the bottom of the ad contained the text “Capri-Sun competition” in a white, bold font alongside a gaming controller icon.
The content was positioned between two other Nickelodeon game tiles, all of which were formatted identically to the ad in the same size, with black banner containing white bold text and gaming controller icon.
IssueThe ASA challenged whether the ad was obviously identifiable as a marketing communication to its audience.
Capri Sun GmbH said the ad was developed and produced by third-party agencies under their supervision and that the content was assessed by the compliance team at Paramount, particularly with a view to complying with the CAP code. They said that the use of “Advertisement” was prominently displayed in capital letters and contrasting colours and they therefore considered that the disclaimer was clearly visible and appropriate. They said the ad was sectioned in a separate box at the very bottom of the page, identifying that the content was separate from other content on the page and that it included a clear display of their brand name (in bold and capital letters) which made the commercial intent of the marketing campaign clear. They also said that the ad box was accompanied by the word “competition” (in bold and capital letters) to make it identifiable as marketing content.
Paramount, responding for Nickelodeon, said they did not carry traditional marketing campaigns on their website but did enter into editorial content partnerships and prize promotions.
They said that the ad tile on the Nickelodeon homepage prominently featured the word “ADVERTISEMENT” in the top right-hand corner and that it was a significant size (roughly equal to the marketer’s font size) and in capital letters. They said the banner along the bottom of the tile identified the marketer and made clear that the tile related to a promotion and was not editorial content. They accepted that the tile appeared on the homepage with similar tiles that featured editorial content and that this was possibly due to technical constraints.
They said, when clicking through to the landing page, the use of the word “ADVERTISEMENT” and marketer’s name made it clear that it was a marketing communication and not editorial content.
Paramount said the audience likely to view the ad (on Nick.co.uk) would be a mixture of children and adults acting in a supervisory role and that the older children and adults would be likely to understand the term advertisement.
They said that they did not believe that enhanced disclosure requirements would apply to the ad, although they considered their disclosures were prominent, interruptive (particularly on the dedicated landing page) and sufficient to identify the marketer.
They said the ad was no longer being displayed and would not be displayed again in the future.
The CAP Code stated that marketing communications must be obviously identifiable as such, and must make clear their commercial intent, if that was not clear from the context. CAP guidance noted that younger children posed a particular challenge to marketers. Cognitive development was in its early stages, meaning they sometimes could not recognise more integrated online marketing communications.
The guidance identified situations where ads directed at under-12s were likely to require ‘enhanced’ recognition disclosure; namely, where it was: directed at under-12s; highly immersive; or significantly integrated into the surrounding editorial content and unlikely to be identified clearly from the context in which it appeared. Display advertising that looked as though it was part of the surrounding content, or which might be confused with editorial of first-party content, would likely require further disclosure. Such disclosure should be prominent, interruptive, and sufficient to identify the marketer and the commercial intent of the ad.
Given the age range of the audience for nickelodeon.co.uk, the ASA acknowledged that the audience viewing the ad would be a mixture of children and adults acting in a supervisory role who would be able to understand the term advertisement. However, we considered that there would be a significant audience of young children under 12 viewing alone.
We noted that the page was split into sections with different titles, such as “featured”, “videos” and “games”, and that there were also banner ads which were separate from the content in those sections. The ad, which was in the games section, was formatted identically to the surrounding editorial content, and presented in tiles that were the same size and shape as editorial content along with an identical ‘gaming’ banner. We therefore considered that the ad was significantly, visually integrated into the surrounding content. While both the name of the marketer and the word “competition” were displayed within the gaming banner, the formatting of the banner itself contributed to it being less identifiably separate from the surrounding editorial content.
Given that high level of integration, we considered that it would be unlikely that children would be able to identify the content as an ad from the context in which it appeared.
We acknowledged that an ad disclosure label “ADVERTISEMENT” had been used within the tile. Whilst the label was in capitals and a slightly larger font, we considered that the use of a colour palette that matched and blended with the overall ad colours did not make the disclosure sufficiently prominent or interruptive enough for younger children to realise at the point at which they were engaging with the content that it was distinct from the non-advertising content around it. In addition, within the webpage there were other Nickelodeon first-party editorial content tiles with ad labels. Whilst the ad label for the editorial content was different from that used for the ad, we considered that it would be difficult, especially for younger children, to understand the difference between the types of content when both carried ad disclosure labels.
We also acknowledged that the name of the marketer was identified within the ad. However, we considered that, because it was incorporated within the ad graphic itself and presented in a colour palette and style which matched the ad this contributed to it appearing integrated and therefore was not prominent or interruptive enough for young children to identify the marketer. We therefore considered that the identification of the marketer within the ad was not sufficient to enable young children to easily identify the marketer and the commercial intent behind it.
We considered the ad did not adequately fulfil the criteria required to satisfy the requirements of enhanced disclosure for children to be able to distinguish the ad against other website content. We further considered that the ad was unlikely to be obviously identifiable as such by its audience and therefore concluded that it breached the Code.
The ad breached CAP code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (recognition of marketing communications).
The ad must not appear again in its current form. We told Capri Sun GmbH to ensure that ads were obviously identifiable to their audience, and used ‘enhanced’ disclosure where required.