A banner ad for Cry Babies toys, seen in February 2022, on nickjr.co.uk. A content box with a turquoise background displayed cartoon images of six babies dressed in different outfits around text “Cry Babies” and “Magic Tears” in handwritten font coloured pink and turquoise. A pink ad label with text “ADVERTISEMENT” was above the babies. A purple banner with white text “CRY BABIES MAGIC TEARS” and “A world of Friendship and Magic Adventures” sat beneath the ad.
The ad was positioned alongside other ads and tiles linking through to games, all of which were formatted identically to the ad, in the same size, with a purple banner and white text below any imagery.
IssueThe ASA challenged whether the ad was obviously identifiable as a marketing communication to its audience.
Paramount responded on behalf of IMC toys and Nickjr. They said they did not carry traditional marketing campaigns on their website but did enter into editorial content partnerships and prize promotions.
They believed the ad in question was obviously identifiable as marketing communication to its audience and the word “ADVERTISEMENT” clearly appeared within the marketing communication on the NickJr homepage. They said that the disclosure was of a significant size and colour as to make it stand out as it was in capital letters, centrally located and in a colour that clearly contrasted with the light background. They accepted that the tile appeared alongside similar tiles that featured editorial content, possibly due to technical constraints.
Paramount referenced the landing webpage that hosted the marketing communication, which was reached when clicking the ad tile, and said that interruptive disclosures made were sufficient to identify the marketer and the commercial intent. They said that the relevant disclosures (including use of the word “ADVERTISEMENT” and marketer’s name) made it clear that it was a marketing communication and not editorial content. The said that the wording on the landing page specifically reflected the CAP guidance communicating a marketer’s commercial intent in a way likely to be understood by under-12s.
Paramount said that they considered the ad would be obviously identifiable to children taking into account the relevant context. They said that whilst certain Nickelodeon channels were aimed at young children (including pre-school age 2 to 6 years) the nickjr.co.uk website audience was likely to be used by a mixture of young children and adults acting in a supervisory role. They said older children viewing the website on their own, as well as younger children viewing the website with a parent in a supervisory capacity would likely understand the enhanced disclosures or have them explained to them.
Paramount acknowledged that there may be an argument that young children did not fully understand the concept of an “advertisement”, but they believed their approach was within the expectations of the CAP Code and in line with that of their competitors.
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.
The ASA considered the target audience for nickjr.co.uk was likely to be pre-school age children, and we acknowledged that the audience viewing the ad would be a mixture of children and adults acting in a supervisory role. We acknowledged that supervising adults would be able to understand the term advertisement. However, we considered that there would likely be a significant audience of young children under 12 viewing alone.
We noted that the page was split into different titles with ads grouped together. The ad was formatted identically to the surrounding editorial content in the same size and shape tile as the editorial content, along with an identical purple banner. We considered that the ad was significantly, visually integrated into the surrounding content, and the formatting itself contributed to it being less identifiably separate from the surrounding editorial content.
Given the high level of integration due to the formatting, we considered that it would be highly unlikely that very young 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 centrally located, we considered the font size was not particularly prominent and the use of a colour palette that matched the ad graphic had the effect of blending the disclosure with the ad. Therefore, it 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.
We also acknowledged that the name of the marketer was identified within the ad. However, because it was incorporated within the ad graphic itself and presented in a colour palette and style which matched the ad, this contributed to its integration. Therefore, we considered that the identification of the marketer within the ad was not sufficient to enable young children to easily identify the commercial intent behind it. The landing page did carry a clear disclosure by the marketer using terms outlined in CAP guidance, but even ads which were limited by space required labels to be sufficiently prominent and immediate within the ads themselves, to distinguish them from non-advertising content around them.
We considered that 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 IMC Toys to ensure that ads were obviously identifiable to their audience, and used ‘enhanced’ disclosure where required.