Children’s advertising: ASA puts its’ foot down

In June, the Advertising Standards Agency (“ASA”) issued four rulings focusing on children’s advertising and need for marketing communications to be obviously identifiable to make clear their commercial intent.

ASA also issued summary guidance on the same day which offered specific advice in how the overarching requirement of “all advertising needs to be obviously identifiable as such” applies in relation to children.

The CAP Code and Guidance

The UK Code of Non-broadcast Advertising and Director & Promotional Marketing (the “CAP Code”) requires that all advertising needs to be obviously identifiable. In April 2017 (the “2017 Guidance”), ASA issued detailed guidance which required an enhanced disclosure where a marketing communication is:

• Directed at under-12s.
• Highly immersive or significantly integrated into the surrounding editorial content.
• Unlikely to be identified clearly from the context in which it appears.

The 2017 Guidance goes into more detail about what each of these, in particular the second and the third points, mean.
It also explains that an enhanced disclosure should be: prominent; interruptive; and sufficient to identify the marketer and the commercial intent.

These three characteristics are key to the four rulings made by ASA in June 2022 and the guidance issued on the same date (the “2022 Guidance”) restates the 2017 Guidance using the four rulings as examples. It is clear that ASA felt the need to make these requirements clear.

The 2022 Guidance gives some more practical guidance stemming from those the three characteristics of an enhanced disclosure. Namely, it states to meet those three points 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.

The Rulings
The rulings themselves were made against Capri Sun, IMC Toys (two separate rulings) and UK Insurance Limited t/a Churchill. All four of these advertisements were deemed as not being obviously identifiable by their audiences, young children.

As an example, the ruling against Churchill was in respect of an advertisement on the Nickelodeon Jr website which showed a photographic image of a bulldog with a blue and pink background. Amongst other details, a blue label with the text “ADVERTISEMENT” in white was at the bottom right of the advertisement.

Although this was clearly labelled advertisement, ASA held that it was not obviously identifiable as marketing material owing to the fact it was of a similar size and colour schemes to surrounding, non-marketing content. As such, it was not sufficiently prominent or interruptive enough for the marketer and commercial intent to be identified.

This particular advertisement was even to highlight a road safety campaign and not for the purpose of persuading its audience to purchase a product, however ASA still deemed it a marketing material.

This, and the other rulings, show that simply marking something as an advertisement can sometimes not be enough. By issuing the 2022 Guidance along with these four rulings, ASA seem to be of the view that this is not being considered by marketers sufficiently enough.

If you have any queries on this article or require any advice on your advertising strategies, please do not hesitate to contact a member of the Commercial team.