The ASA recently ruled that a video paid for by the Oreo brand featuring YouTube stars broke advertising rules, as it was not obvious that the video had been paid for – even though the advertisers had taken steps to make this clear to viewers.
Many in the industry will have taken note of the recent ASA ruling that a YouTube campaign sponsored by Mondelez, the maker of Oreo, was in breach of advertising regulations as it was not ‘obviously identifiable’ as an advertising campaign
This ruling will surprise many, given that Mondelez had taken a number of steps to ensure that the videos were compliant and to explain to viewers that they had been sponsored.
It seems that Mondelez was following the standard practice used by many other marketers on YouTube by including a disclosure in the video’s description which stated “Thanks to Oreo for making this video possible.” Mondelez also claimed in its response to the ASA that its own policy was to go a step further than this, and it therefore also made sure that the vloggers referred to the fact that Oreo has sponsored the video within the video itself.
Despite these efforts, the ASA has now taken the view that the industry as a whole needs to do more to signify to viewers that content is sponsored when advertising on vlogging platforms in order to comply with the rules.
What does the regulation say?
The UK Code of Non-Broadcast Advertising, Sales Promotion and Direct Marketing, otherwise known as the CAP Code, is a body of industry regulation that applies to advertising and marketing communications, including those online and on social media. Among other things, it requires marketing communications to be “obviously identifiable as such“(Rule 2.1) and to”make clear that advertorials are marketing communications“(Rule 2.4).
Since the scope of the CAP Code was extended in 2011 to cover all online ads – including those in non-paid for space such as social media – there has been increased confusion amongst advertisers as to how these rules should be applied to online platforms.
Throughout 2012 and 2013, the ASA was faced with a series of complaints over promotional content on Twitter, as brands tried to harness the huge following and audience engagement enjoyed by well-known celebrities. This led to the ASA upholding complaints over tweets by celebrities such as Wayne Rooney and Gemma Collins which did not make sufficiently clear that they had been paid for, and issuing guidance that marketers should include the identifiers ‘#ad’ or ‘#spon’ when commissioning celebrity tweets.
However until yesterday’s ruling, there had been relatively little equivalent guidance on how the CAP Code rules should apply to video blogs.
What steps do vloggers need to take?
One of the ASA’s primary concerns with promotional content on platforms such as YouTube is that most content on such sites is editorial. Without a very clear explanation that certain content has been paid for, it can therefore be very difficult for consumers to tell which is which.
Similarly, the average audience viewing content on these platforms is generally likely to be younger than on other platforms and potentially more vulnerable to being misled.
In light of this, the ASA ruling (and related guidance note) now makes clear that the manner in which statements disclosing that content is sponsored are brought to viewers’ attention, as well as what is said, will all be relevant in assessing whether it is compliant with the rules.
Crucially, the ASA now insists that the commercial relationship between vloggers and companies should be brought to viewers’ attention before they are able to engage with the content. Vloggers should make this clear from the outset and should ensure that this information is not hidden further down a page, where viewers are less likely to see it.
What should advertisers do?
Advertisers should consider taking the following steps:
- Ensure disclosure statements clearly indicate that there is a commercial relationship between the advertiser and the vlogger;
- Make sure statements are made prominently at the beginning of the video, and are included clearly in any accompanying description that does not require consumers to scroll down or expand text; and
- Consider whether the statements would be visible to viewers watching the content on different platforms such as on mobile, or where it has been embedded on another web-page.
It is possible that, as promotional vlogging content becomes more prevalent and users become more used to seeing this type of content, the ASA will relax its stance on how strictly it should apply the rules. This appears to be the case on Twitter, as advertisers find increasingly creative ways to signify advertising content to users whilst departing from the rather prosaic ‘#ad’ or ‘#spon’ identifiers. In the meantime, advertisers should refer to the new CAP guidance on video blogs for further information.