How to Use #Ad

This blog post was first published on 14 August 2019

The content of this post is information only and does not constitute legal advice. If you need legal advice you should consult a lawyer in your jurisdiction. The imagery used in this post is free from Haute Stock.

You’ve worked hard, grown your blog, brand and business and you’ve been asked to work with a huge household brand to promote their latest campaign. After you’ve finished celebrating and doing your happy dance there are a few things you need to know to make sure that your new collaboration stays the right side of the law.

If you’re new to consumer protection and advertising, then take a look at the first paragraph below where you’ll find a summary of who is who and a list of the relevant legislation and governing bodies who create and implement the codes. The CAP Code "(“the Code”) sets out the advertising rules which apply to newspapers, magazines and social media. You can find the full code here.

RULES, LEGISLATION & GOVERNING BODIES

Below are some of the relevant codes and potentially applicable legislation:

The Advertising Standards Authority (ASA) is the UK’s advertising regulator - their role is to make sure that ads across the UK media adhere to the Ad Codes.

The Committee of Advertising Practice (CAP) are responsible for writing the Ad Codes

UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code)

The Consumer Protection from Unfair Trading Regulations 2008 (CPRs)

INTRO - THE CODE

The CAP Code is split into sections, dealing with topics such as advertising to children and political ads. The sections which most commonly relate to bloggers and those working with brands:

• Section 2 contains the rules about how ads are to be recognisable as ads.
• Section 3 sets out the rules which are to be followed to avoid being mis-leading.
• Section 8 contains the requirements for running competitions
• Section 12 set out the details relating to the promotion of medicines, medical devices, health-related products and beauty products.

In addition to the stipulations within the Code, consumer protection legislation also states that it is against the law to use editorial content to promote a product in the media, where a trader (brand) has paid for the promotion if it is not made clear in the written content (or by images or sounds) that it is paid for.

WHAT CONSTITUTES AN AD?

If you work with a brand to create content for them and share it on your channels it will constitute an Ad if:

1. You get paid - this can be monetary or by receiving gifted product

AND

2. The brand had control over the editorial content

There has to be payment AND control. If a brand gifts you product but states no requirements for you to share the product or create content then this would not constitute an Ad. (However, as there has been ‘payment’ consumer protection legislation still applies).

WHAT CONSTITUTES PAYMENT?

Payment of a specific amount of money to create content or post pre-made content constitutes ‘payment’. Other relationships are also captured such as receiving products, gifts, services, trips or hotel stays for free, qualify as “a payment or other reciprocal arrangement”. Payment or gifting alone doesn’t create an Ad there has to be control over the content.

WHAT CONSTITUTES CONTROL?

Whether a brand has ‘control’ depends on the arrangement or agreement in place. The ASA advise that “if you aren’t completely free to do and say whatever you wanted whenever you wanted, then there could have been some level of editorial control”. Note here that it’s not just whether the control is put into action, but whether a brand could have asked you to make changes, such as, when they reserve the right to review or approve the content before it is published. They might never make any changes but if they could have done then they have control.

Similarly, a brand doesn’t have to tell you exactly what to say to have control. If a brand asks you to incorporate a key message or use a specific hashtag or phase then they have control. The ASA have also advised that a request to include a certain image, e.g. an action shot or even to state that you must be in the image, demonstrates that the brand have ‘control’.

HOW TO SHARE AN AD

Under the Section 2 of the Code ads “must be obviously identifiable as such”. This means that consumers should be able to recognise that something is an Ad, without having to click or otherwise interact with it. It needs to be “obvious”.

Both the blogger and the brand are responsible for ensuring that the advertorial content makes it clear that something is an advert. If the content is not clear from the face of it that it is an Ad then it must be made clear. The ASA have confirmed that the following labels should be used:

• Ad
• Advert
• Advertising
• Advertisement
• Advertisement Feature

The use of Sponsorship, Sponsored Content, Spon, In association with, In partnership with, thanking the brand or simply tagging the brand are considered to be mis-leading.

Whichever label is used it must be "obvious”. The guidance from the ASA is that the content should be up-front that it is an Ad (before people click/engage) prominent (so people notice it) and appropriate to the channel (can you see the ad mark and in a timely way?). Based on this guidance it is clear that burying #AD at the bottom of a post or in a cluster of hashtags will not be “obvious”.. The recommendation is that AD should be used at the beginning of a caption.

WHAT ELSE?

Clearly identifying content as an Ad is just the first step, the Code and legislation require that any claims made can be backed up as required by Section 2, that nutritional claims adhere to the specific rules in Section 15 and that competitions and giveaways are run in accordance with the guidance in Section 8. You are entitled to use your opinion in an Ad but you must be careful not to go too far and make claims that cannot be supported by evidence. It is not just the ASA that are passionate about this.  

YOUR THOUGHTS

I would love to hear your thoughts on this. Where you already aware of the Code? Have you seen lots of bloggers becoming more transparent with their ads? Or do you feel like there is still a long way to go?

If you’ve found this post helpful then you might like my monthly newsletters, sign up below to get a monthly round-up of posts just like this.

Lucy x