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.
The Scope of the Code states that the Code applies to advertorials and part III (subsection k.) defines this as “an advertisement feature, announcement or promotion, the content of which is controlled by the marketer, not the publisher, that is disseminated in exchange for a payment or other reciprocal arrangement".
This means there is a two stage test for content to be considered an advertorial. The test hinges on the concepts of payment and control and applies to both traditional media and online media (including vlogs, blogs, tweets, etc.).
If ‘payment’ exists and the content is ‘controlled’ by a marketer, the ASA would consider that material within its remit and rule 2.4 would apply, meaning the fact that the advertorial is a marketing communication must be made clear. However, if either of the stages of the test are not met, the material will not be considered within the scope of the CAP Code (but this doesn’t mean that it wouldn’t be regulated by another body).
Take into account whether there has been a ‘payment’
For the first stage of the test, money does not necessarily need to change hands and the payment need not be financial. Other mutually beneficial agreements made in place of direct payment may be considered an ‘other reciprocal arrangement’.
For example, a bus company might advertise in a newspaper in exchange for the newspaper being given space to advertise on the bus-sides. Similarly, a magazine might give a significant amount of editorial space to an advertiser that places an ad in the magazine or run an ad free of charge if the marketer agrees to pay for another advertisement at a later date. A brand might also give free items or gifts to a publisher in lieu of a financial payment.
Consider who has editorial control over the content
The second stage of the test takes into account the degree of control the marketer exerts over the content of the feature or promotion. A good benchmark is whether the marketer has final approval of text and any visuals used. For example, a company might provide information to a journalist that is then used as the basis for an article, or a publication might ask for a fee to reproduce a photograph or cover a story but neither scenario would make the resulting article an advertisement feature and both would remain outside the remit of the CAP Code.
However, if the marketer had control over the content of the article, the resulting article would be an advertisement feature. If a travel journalist was given an expenses-paid holiday by a travel company in the hope that a favourable article would be written, the resulting article would not be considered an advertisement feature if the company and the journalist had not agreed its content. However, if it was subject to the company’s approval prior to publication, the copy would be subject to the Code.
Similarly, if a marketer sends out samples in the hope that people will choose to review them, any resulting copy would not be considered an advertorial. However, if marketers dictated the copy and provided free goods on that basis, the resulting copy would be an advertorial. A column in a newspaper headed “professional brief” where the advertiser had paid for the space and supplied the content for the column was ruled to be an advertisement feature (French Duncan Chartered Accountants, 1 September 2004).
Make clear that an advertorial is an ad
Advertisement features are usually designed to resemble the editorial style of the publication in which they appear but they should nevertheless make clear that they are marketing communications. While it is feasible that the overall context could make this sufficiently clear the ASA are yet to rule on this, so the most straightforward way to make it sufficiently clear is to include a prominent header along the lines of “Advertisement”, “Advertisement Feature”, “Promotional Feature” or similar to distinguish them from genuine editorial (National Federation of Cypriots, 22 November 2006).
Any visual or contextual signposts would also need to be sufficiently prominent and clear prior to engagement. An advertisement feature for Flora proactive was judged to breach the Code because the overall impression was that it was an article written independently by a Telegraph journalist and the wording "in association with Flora pro.activ" 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. The ASA ruled that it was not clear that the heading related to the ad (Unilever UK Ltd, 2 November 2011).
Marketers should not assume that readers’ familiarity with ad campaigns in other media will mean that they will automatically distinguish an advertisement feature from editorial content. Even if the advertisement feature appears in a format that is commonly used for advertisement features (such as a newspaper wraparound), marketers should not assume that readers will automatically recognise it as such (British Sky Broadcasting Ltd Sky One, 4 April 2007).
Remember that the spirit of the Code applies as well as the letter
In 2009 the CAP Monitoring team noticed that one national newspaper was routinely publishing what appeared to be full-page features for various products. The top half of the pages were presented as an article containing information about a product, including efficacy claims (which would have been prohibited in advertising). The bottom half of the pages featured an ad that contained information on where that same product could be bought.
CAP were concerned that the top half of the page was controlled by the advertiser rather than the publisher and as such should have been identified as an advertorial. Although the publisher argued that they showed the finished text to the advertisers only to check for inaccuracies, and said they were not permitted to alter the text in any way, the ASA noticed that the articles were uniquely favourable to the product featured in the accompanying ad and appeared in the same, or a substantially similar, format on different dates.
The ASA concluded that the information presented in the articles complemented and added to the information provided in the ads, and the average reader would have therefore been likely to have understood the entire page to be a feature on the product, no matter the distinct styles of the top and bottom of the pages. They therefore considered that by using that approach, the publisher and advertiser were intentionally attempting to circumvent the Code (Express Newspapers & Goldshield Ltd, 12 August 2009; Express Newspapers & Orthotics Online Ltd, 12 August 2009; and Express Newspapers & LadyCare Lifetime Ltd, 12 August 2009).
The CAP Help Note on Advertisement Features provides detailed guidance on: how to judge whether an article is an advertisement feature (by taking into account payment and other reciprocal arrangements as well as who controls the content); the responsibility for identifying advertisement features and how advertisement features should be identified.
See also “Recognising market communications: Overview” and “Video blogs: Scenarios”.
Updated 26 September 2016