When a brand gives a blogger, vlogger or online streamer a ‘payment’ (i.e. any form of monetary payment, loan of a product/service, any incentive and/or commission or a product/service has been given free), any resulting posts/videos/streams are likely to become subject to consumer protection law. When a brand also has control over the content, they become subject to the CAP Code as well (see ‘Remit: Advertisement features’).
This means that whenever a blogger, vlogger or streamer receives a ‘payment’ from a brand, this needs to be disclosed in any relevant blog posts/videos, as well as any social media posts (see ‘Recognising ads: Social media and influencer marketing’ and the ‘Influencer’s guide to making clear that ads are ads’). The same goes for ‘affiliate marketing’ (see ‘Online Affiliate Marketing’).
Please note that this advice article focuses on third party blogs and vlogs, and is not intended to cover content on a marketer’s own website or social media.
Make sure the content is obviously identifiable
It’s often clear what is and isn’t an ad from the overall style of presentation and the place where it appears. For example, viewers are likely to recognize that pre-roll ads on a YouTube video are separate to the video and that banners or pop-ups on a blog page are ads rather than editorial content.
‘Advertorial’ blogs and vlogs are more difficult to distinguish from independent editorial or user-generated content, because they appear in the same place as regular posts and tend to look very similar. The ASA’s research on labelling influencer marketing in particular, found that people tend to struggle to identify when social media posts by influencers are ads. Because of this, marketers (and the vloggers, bloggers or streamers they work with) should pay particular attention to ensuring that marketing communications are obviously identifiable as such in this space.
In 2014, five advertorial YouTube videos from vloggers were ruled to breach the Code because their commercial intent was not clear prior to consumer engagement. Although phrases like “Thanks to Oreo for making this video possible” were included verbally or in the description of the videos, consumers would only see these after they’d already clicked to start watching, and the presentation of each ad was very much in keeping with the editorial style of the respective channels (Mondelez UK Ltd, 26 November 2014).
More recently, the ASA ruled that two YouTube videos on the channel “Global Cycling Network (GCN)” breached the Code because they didn’t make sufficiently clear that they were paid advertisements. Both included the statement “Thanks to Wahoo Fitness for the products used in this video” in the ‘description’ box that appeared beneath the video, along with a nod to them as ‘sponsors’. The ASA considered that those statements were insufficient to make clear that the videos were ads, as opposed to sponsored content over which a brand would have no editorial control (Wahoo Fitness (UK) Ltd, 7 March 2018).
Marketers (and vloggers/bloggers/streamers) therefore need to ensure the presentation of advertorial content makes it clear that it is an ad and if the style doesn’t make the nature of the content immediately clear, then – at minimum – it should to be labelled upfront with an identifier such as “Ad”, “Advertising”, “Advertising Feature” or similar in order to make this clear.
Be mindful that labelling needs to be timely
Viewers need to know they are selecting an ad to view/read before they engage with it, i.e. before they play, open or click on anything (Wahoo Fitness (UK) Ltd, 7 March 2018). Finding out something is an ad after having selected it, at the end of a video or half way through a piece of content will not be considered sufficient to comply with the Code.
If it is not otherwise clear from the context, it’s likely that the title of the vlog/blog and/or the thumbnail will need, at minimum, to include an identifier such as ‘Ad’ so that it is clear to consumers before they click through to the content. If consumers can click to view the content without seeing the title or other accompanying text, this kind of label should be placed wherever it can be seen before someone clicks through to engage with the content.
Advertisers and publishers should be conscious of the way that content is displayed on different devices, and with different viewing settings. If the text that accompanies a video or picture isn’t always visible, stating a label such as “Ad” in that text may be considered insufficient, since consumers won’t see it until after they’ve already clicked to engage with the content.
Ensure that labelling is clear
The ASA’s research found that the more noticeable the label, and the more its meaning is understood to refer to advertising, the more consumers are able to tell when an ad is an ad.
Although many ASA rulings make explicit reference to the use of “Ad” or “#ad”, this is not necessarily the only identifier that could potentially be considered acceptable (though it is arguably the most obvious). Labels or disclosures don’t necessarily have to be formal – they can match the vlogger’s style, they just need to be explicitly clear.
The CAP Code specifically refers to “Advertisement Feature” as an appropriate label for ‘advertorial’ content. The labels “Ad”, “Advert”, “Advertising”, “Advertisement”, “Ad Feature” and similar are all very likely to be considered acceptable labels, as long as they are displayed in a prominent and noticeable place – before consumers engage with the content.
Because the term “sponsored” is open to varied interpretation, we would advise against using this label to refer to advertising content (Britvic Soft Drinks Ltd, 18 November 2015). Labels like “Supported by”, “Funded by”, “Gifted”, “In association with…” and “Thanks to X for making this possible” are also unlikely to be considered sufficiently clear (Mondelez UK Ltd, 26 November 2014).
We would similarly advise against abbreviated labels such as “aff”, “sp”, “spon” and other terms that consumers are unlikely to be familiar with (such as “affiliate”), as the ASA’s research found that understanding of these labels was particularly low.
Remember that the rest of the Code applies
If something falls within the ASA’s remit, it has to comply with the Code in its entirety. It therefore should not, amongst other things, materially mislead consumers or cause serious or widespread offence.
Some sections within the CAP Code are sector-specific, which means that ads for particular product types (e.g. Foods, Alcohol, Gambling) must comply with very specific rules, whereas other parts of the Code (e.g. Misleading Advertising, Harm and Offence) apply to all ads irrespective of the product/service they are advertising.
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.
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