An advertorial for Flora pro.activ, viewed on the Telegraph website on 12 July 2011, was headed "Flora pro.activ: Stepping up the pace. Telegraph journalist Chris Jones tried Flora pro.activ and brisk walks to lower cholesterol". Under the heading was a photograph of Chris Jones walking in the park. Text under the photograph stated "Walk this way: Chris did a daily lap of her local park to exercise. Text in the top right-hand corner stated "in association with Flora pro.activ".
The main body of the ad recounted Chris Jones' experience of combining changes to her diet and exercise routine with drinking Flora pro.activ every day.
Text in bold at the bottom of the ad stated "If you'd like to read more inspiring stories and useful information about how Flora pro.activ can help lower your cholesterol, visit floraproactiv.co.uk".
The complainant challenged whether the ad was misleading, because it resembled a news article written by a journalist and did not make clear that it was a marketing communication.
Unilever UK Ltd (Unilever) said it was very common for advertisement features to have a journalistic style. They said that the top left-hand side of the feature stated "Flora pro.activ" and the top right-hand side stated "in association with Flora pro.activ". They said they felt those headings adequately identified that the feature was an ad, in line with CAP guidance on such features.
Unilever believed the majority of readers would identify that the feature was an ad and it was therefore highly unlikely to mislead readers. They said they did not think any material information had been omitted. Unilever added that they regretted any confusion on the part of the complainant, but they felt the average consumer would be unlikely to be confused by the ad.
The Telegraph also highlighted the two headings at the top of the ad, and added that the last line of the feature invited readers to visit the Flora pro.activ website to view more content about the product. They said they considered that, together, was more than adequate to clearly identify the content as commercial. They said they considered the feature complied with the CAP Code and they believed that the vast majority of their readers would not have been misled by the way the feature was presented. They said this was demonstrated by their page viewing figures, which showed that the feature had been viewed by just over 21,000 unique browsers between 14 February and 18 September 2011, but the ASA had only received one complaint.
The ASA noted that a web-link above the main title of the advertorial stated "Flora pro.activ", but considered that did not make clear that the feature was an advertorial. We acknowledged that the other heading stated "in association with Flora pro.activ", but considered that, because it appeared to the far right-hand side of the webpage above listings for other cholesterol-related articles, with a line dividing that part of the page from the advertorial, it was not clear that the heading related to the ad.
We noted that the advertorial was written in the style of a health and lifestyle piece, and we considered that the overall impression of the ad was that it was an article written independently by a Telegraph journalist. We noted that the title, sub-title and text at the end of the ad referred to Flora pro-activ, but considered that those references were not sufficient to counter the overall impression created by the advertorial, or mean that it was clearly identifiable as a marketing communication. We also noted the page viewing figures provided by the Telegraph, but considered that did not necessarily demonstrate that only the complainant had considered it was not clear that the feature was an advertorial. We considered it was likely that, if a visitor to the page had not identified the feature as an advertorial, they would not have raised a complaint because they would have understood that the feature was a health and lifestyle piece.
Because we considered the ad did not make clear that it was a marketing communication, we concluded the ad was misleading and breached the Code.
The ad breached CAP Code rules
Marketing communications must be obviously identifiable as such.
Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature".
(Recognition of marketing communications),
Marketing communications must not materially mislead or be likely to do so.
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means. (Misleading advertising).
The ad must not appear again in its current form. We told Unilever to ensure that their advertorials made clear that they were marketing communications.