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.
Marketing communications must be obviously identifiable as such. They should be designed and presented in such a way that it is clear that they are advertising material and not, for example, editorial or private correspondence (Rules 2.1 and 2.3).
Consumers should be able to tell from the envelope itself that it is a marketing communication. Claims on envelopes can, in the absence of text identifying the sender, mislead recipients about the nature or source of the contents, appearing to be official correspondence or personal mail (see “Envelopes, Claims on”).
Marketers seeking innovative ways of designing marcoms need to ensure that their choice of presentation is not misleading. Complaints have been upheld about ads that seemed to be hospital x-rays (Racing UK Ltd, 16 May 2012, Friends Provident Life & Pensions Ltd, 26 March 2008), P45s (Video Arts Group, 13 September 2006), parking tickets and wheel clamp charges (Kingstown Associates Ltd t/a Healthy Living Direct, 8 February 2012; Twentieth Century Fox Film Co Ltd, 22 January 2003 Esporta Clubs, 26 June 2002), invoices and penalty charge notices (Intellectual Property Agency Ltd, 6 November 2013; Rightstep Recruitment Ltd, 28 September 2011; Hansa Media Ltd, 13 July 2011; Harvey Water Softeners Ltd, 31 August 2011), notes from neighbours (SpicerHaart Group Ltd, 9 December 2009; Lloyds TSB Bank plc, 25 October 2006), lonely hearts ads (Metro Tartan Distribution, 10 July 2002), compliments slips and handwritten notes (SpicerHaart Estate Agents Ltd t/a haart and Darlows, 18 September 2013; William H Brown, 10 July 2013) and urgent messages from debt management companies (RG Debt Management, 19 January 2011).
Extra care is needed for marketing communications in digital media, which can be more intrusive and for which consumers might not be as sophisticated or experienced at receiving or identifying as marketing communications. In 2003, the ASA upheld its first complaint about a voicemail marcom; in it, Tom Cruise had demanded his Minority Report. Although a voiceover at the end of the message revealed that the message was a trailer for a film, the ASA nevertheless considered that should have been clearer earlier (Twentieth Century Fox Home Entertainment Ltd, 12 February 2003).
That said, the Code does not preclude innovative approaches. Spoof ads, for example, are not necessarily going to be problematic under the Code, providing it is clear that they are marketing communications or are unlikely to lead to consumer detriment. In March 2012, one advertiser used Twitter to promote their product, contracting celebrities to post a string of four tweets totally out of character from their usual postings. The ‘reveal’ tweet, about an hour later, showed a picture of the celebrities with the product and included the text “You’re not you when you’re hungry @snickersUK #hungry #spon...”. The ASA rejected the advertiser’s argument that only the final tweet was a marcom because the earlier ones did not mention the product. It concluded, however, that because the tweets appeared in relatively quick succession and the final tweet was clearly advertising Snickers or Mars, it was acceptable that the first four tweets were not individually labelled as marcoms (Mars Chocolate UK Ltd, 7 March 2012). Marketers considering innovative uses of online media under their control, especially social media, should not see the Mars case as a green light to potentially cause confusion for consumers about the nature of their marcoms. This is an emerging area and the ASA will, as always, assess each marcom on its merits. Factors such as the time-lapse between the initial teaser and the reveal, the context in which the teasers appeared, the sophistication or understanding of the target audience (including the likely understanding of the identifiers used, such as specific hashtags, etc), will all help determine the overall acceptance of the ad or the campaign. For more detail on ads in social media, please see “Remit: Social Media”.
In 2013 the ASA investigated complaints against two YouTube videos which gave the impression of being a video diary posted by a member of the public recommending the Kidz 5 A Day product, but had in fact been placed by the owner of Kidz 5 A Day. The ASA upheld the complaints finding that the videos breached the Code for not being identifiable as marketing communications and for falsely claiming that that the marketer was acting as a consumer (Neil Asher t/a Kidz 5 A Day, 5 June 2013). Marketers should be aware that rule 2.3 reflects one of the prohibited commercial practices of The Consumer Protection from Unfair Trading Regulations 2008 (CPRs), namely, falsely claiming, or creating the impression, that they are not acting for purposes relating to their trade, business, craft or profession, or falsely representing themselves as a consumer.
Additionally, the Code states that marketers and publishers must ensure that advertorials are clearly labelled as such (Rule 2.4). They should, for example, be headed as an “advertisement feature”. Such wording needs to be appropriately prominent. The ASA upheld a complaint about an advertorial featured on the Telegraph website. Although the advertiser’s website address was given and the top right-hand side stated “in association with Flora pro.activ”, the ASA considered that those indicators were insufficient to counter the impression that the article was written independently by a Telegraph journalist and concluded that it was not clear that the article was an advertorial (Unilever UK Ltd, 2 November 2011). See “Advertisement features”.
Fear and distress
Marketers should not cause fear or distress without justifiable reason (rule 4.2). In 2005, the ASA received a large number of complaints, which it upheld, about a mailing sent by Channel 5 to promote a new series of the forensic drama CSI: New York. The mailing was created to look like a police file and, as well as not making clear that it was a marketing communication, the mailing was considered likely to cause fear and distress (Channel 5 Broadcasting Ltd, 16 February 2005). Similarly, the ASA upheld complaints against a mailing which included a mock-up of an x-ray and other medical records because it unclear that it was marketing material and, because of the realistic presentation of the medical records enclosed, the ad was likely to cause undue distress to some recipients (Racing UK Ltd, 16 May 2012). The ASA considered that a series of apparently hand-written love notes sent in the weeks before Valentine’s Day to promote a social website could be mistaken for personal correspondence and therefore distress some recipients who might have thought they were the targets of unwanted romantic attention (WOW! Creative Services, 19 April 2006). Any mailings implying that some form of payment is due, or that legal action is being taken, are also likely to cause fear or distress to recipients (Kingstown Associates Ltd t/a Healthy Living Direct, 8 February 2012, Kingstown Associates Ltd, 15 December 2010 and Brady Corporation Ltd t/a Seton Ltd, 1 September 2010).
However a direct mail brochure which had a “spoof” cover designed in the style of a newspaper front page and referred to the recipient in the headline text and article was not considered to breach the Code because the brochure was clearly marketing material and the personalised approach was explained inside (Scotts of Stow Ltd t/a The Original Gift Company Ltd, 16 March 2011).
Legitimate unsolicited e-mails (those to existing customers about similar products see rule 10.13.3) should be identifiable as marketing communication without recipients needing to open them (Rule 2.2). Marketers should, for example, give an indication in the ‘subject’ field. The ASA has upheld complaints about subject fields that have misled about the source (UK-2 Ltd, 17 August 2011; Direct Market Services Ltd, 2 June 2004; Premier Direct UK Ltd, 19 November 2003) and nature (C Fry, 21 January 2004; Business in a Box, 17 December 2003) of the e-mail, in addition to those that have remained blank (Selling For Engineers Seminars Ltd, 28 January 2004). Marketers have been found in breach of the Code by misleadingly implying that their unsolicited e-mails were from a well-known company when they were not (Phone Direct, 18 August 2004). An e-mail which included the title “Business Seminars – Telesales & Selling Skills Made Easy” in the subject field was found not to mislead about the nature of the e-mail (The Training Guild, 10 September 2003). However the advertiser was found to breach the database practice rules because explicit consent to receive the marcom had not been given (see Database practice: Consent (explicit)).
See “Public notice”