Who: The Advertising Standards Authority (ASA)
When: 15 June 2022
Law stated as at: 18 July 2022
Following four rulings released on 15 June 2022 (upheld against Capri Sun GmbH, IMC Toys UK Ltd and UK Insurance Ltd), the ASA has released summary guidance on the enhanced disclosure requirements for children under the age of 12. The ASA recognises that the overarching requirement for ensuring ads are obviously recognisable as such (in section 2 of the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code)) can be difficult for younger children. Therefore, summary guidance has been published, which reinforces the detailed guidance from April 2017 on “Recognition of advertising: online marketing to children under 12”.
The guidance provides that a marketing communication will require enhanced disclosure when it 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,
This means disclosures should be:
- interruptive; and
- adequately indicate the commercial intent.
In terms of whether an ad may be “highly immersive” or “significantly integrated”, the ASA provides the following guidance:
- “Highly immersive” means that the ad features “prolonged or in-depth interactivity, principally, game play or narrative such as that of a story in audio-visual content”.
- A “significantly integrated” ad is “visually or otherwise integrated into the surrounding editorial content or context, for example, a display ad that looks as if it is part of the surrounding content. The usual separations between advertising and other content – spatial and/or thematic – are absent.”
- Examples include but are not limited to: paid for endorsements by an influencer or creator; branded video content on third party sites; and ads in the metaverse.
Where an ad falls within scope, a prominent, interruptive and sufficient enhanced disclosure will:
- be “within or directly next to the marketing communication; of significant size and colour to stand out [for example, not using a similar font or colour palette to the rest of the ad]; and readily apparent before (if possible) or immediately at the point of engagement”; and
- “make clear who the marketer is and adequately indicate the commercial intent”.
Why this matters:
The ASA’s body of work includes an ongoing focus on the protection of children. The guidance is a helpful reminder to advertisers of the importance of both ensure disclosures are clear (for any audience) but also the importance of ensuring disclosures are clear for under 12s. The accompanying four rulings demonstrate how advertisers may fail to comply and that this is a hot topic for the ASA. It is also worth noting that this guidance is the result of the ASA’s work as a proactive regulator taking self-initiated action, as the four rulings were all based on complaints raised by the ASA.