On 15 June 2022, in a string of four rulings, the ASA reminds advertisers of the “enhanced disclosure” requirements applicable to marketing communications that are targeted at under-12s. These rulings include one against Capri Sun, two for IMC Toys and one for U K Insurance Ltd.
In all of these cases, the ASA challenged whether the adverts were obviously identifiable as marketing communications and therefore in breach of Section 2 of the CAP Code. While much marketing is obvious by its nature and/or format, it is argued that some formats need further, “enhanced” disclosure to help younger children understand the commercial nature of the content.
In May 2017, the Committee of Advertising Practice (CAP) issued guidance that stated that if a marketing communication is directed at under-12s (through the selection of media and/or the content), highly immersive or significantly integrated into the surrounding editorial content and unlikely to be identified clearly from the context in which it appears, it will require enhanced disclosure.
Enhanced disclosures should be prominent, interruptive, and sufficient to identify the marketer and the commercial intent. This means that the disclosure should be:
- within or directly next to the marketing communication;
- of significant size and colour to stand out; and
- readily apparent before (if possible) or immediately at the point of engagement.
In the above rulings, all of the adverts were banner ads that appeared on websites that targeted, or would be accessed by, under-12s and therefore required enhanced disclosure. Although each advert was labelled as “ADVERTISEMENT” and included the marketer’s branding to indicate commercial involvement, the ASA did not deem this disclosure to be sufficient. One issue was that the formatting and colour of the “ADVERTISEMENT” label blended with the overall colour palette of the rest of the ad, and therefore was not prominent enough for children to realise that they were being presented with commercial content.
The ASA continues to monitor how commercial content is being labelled, and is paying close attention to how advertisers are marketing to younger children. It is interesting to note, however, that the so-called enhanced disclosure requirements are not expressly referenced in the CAP Code itself. The DCMS Committee in its report into influencer culture published in May 2022 called for the ASA to update the CAP Code to include enhanced disclosure requirements for adverts targeted at children, and we understand that the ASA is “open” to this idea, subject to seeing the arguments and evidence in support of a rule change. In the meantime, the ASA has used these four rulings to remind advertisers, particularly in the digital space, that extra steps are needed to ensure that advertising is obvious to children.
For further information, please contact:
Shona O’Connell, Bird & Bird
Shona.OConnell@twobirds.com
