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). 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 ‘Public Notice’ and ‘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 (Friends Provident Life & Pensions Ltd, 26 March 2008), P45s (Video Arts Group, 13 September 2006), parking tickets and wheel clamps (Twentieth Century Fox Film Co Ltd, 22 January 2003, and Esporta Clubs, 26 June 2002), invoices and penalty charge notices (Rightstep Recruitment Ltd, 28 September 2011, Hansa Media Ltd, 13 July 2011 and 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) and urgent messages from debt management companies (RG Debt Management, 19 January 2011).
Marketers should not cause fear or distress. 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 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, 15 December 2010 and Brady Corporation Ltd t/a Seton Ltd, 1 September 2010).
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. Marketers may also wish to check they are not potentially in breach of The Consumer Protection from Unfair Trading Regulations 2008 (CPRs), by undertaking the prohibited commercial practice of 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.
Generally speaking, including a logo or recognizable business name in marketing communications – for example, on envelopes for direct mailings – is advisable (SpicerHaart Group Ltd t/a Darlows Estate Agents , 23 March 2011). Similarly, a mailing for the charity Children’s Society, which had text on the front of the envelope that stated "No time to pack when you're running from abuse ... URGENT PLEASE REPLY BY: 27 May 2006" was not considered to be misleading because it carried the Royal Mail mark used for high volume direct mail, not a stamp, and included the Children's Society logo and its address and Registered Charity number; the ASA agreed that the mailing was therefore identified clearly as marketing material (Children’s Society, 6 September 2006).
Marketers should take care to ensure that their attempts to identify their mailings as marketing communications are not likely to be overlooked by consumers. In 2011, the ASA upheld complaints that text on packages sent by Virgin Media was considerably smaller than the main copy on the front of the envelope, was at 90 degrees to all the other text, and was located far to the right of the envelope under a series of reference numbers. The combination of those factors meant it was likely to be overlooked by consumers and therefore not be clearly identifiable as promotional material (Virgin Media Ltd, 2 November 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).
Legitimate unsolicited e-mails (those to existing customers about similar products) 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, and Premier Direct UK Ltd, 19 November 2003) and nature (C Fry, 21 January 2004, and 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). But one 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).
It is apparent that the ASA has, in the past, consistently required marketers to make clear the nature of unsolicited e-mails in the subject field. That information might be acceptable only in the “from” field (for example, “From: marketing@company.com”) provided that the subject field does nothing to contradict the impression created by the “From” address (for example, by implying a personal relationship). But that approach has not been tested by an ASA investigation and marketers are urged to be cautious. (Marketers should read rule 10.13.3 and ‘Database Practice’ to ensure they comply with the data protection rules).
Finally, 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”. CAP have produced a Help Note and Advice Online entry on this topic that explains which criteria are used to determine if an article falls within the ASA’s remit or not, These consider payments or other reciprocal arrangements, and who maintains editorial control of the text. In November 2011, 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. It concluded that it was not clear that the article was an advertorial (Unilever UK Ltd, 2 November 2011).
See ‘Advertisement Features’
Last modified : 26 April 2012