What do the new ASA CAP code extensions mean for UK companies?

An overview of the implications of the new 01/03/2011 marketing guidelines

Importance: [rating=5] (if you're based or market within the UK)

Link: ASA Advertising CAP code - see guidance on "Recognition of Marketing" in the non-broadcast media which is relevant to social media, content marketing and native advertising

Our commentary: The ASA's new online extension is important for UK marketers since it now covers marketers own marketing claims on their own websites and in other non-paid for space they control.

According to the ASA the scope is as follows - you can see it applies to both B2C, B2B and not-for-profit / charity activities. The CAP code extension covers:

Advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities.

Previously, the ASA remit online was limited to paid-for ads (such as pop-ups and banner ads) and sales promotions wherever they appeared.

Marketing implications: To give you an idea of the likely level of complaints - In the two years covering 2008-2009, the ASA rejected approximately 3,500 complaints relating to the content of organisations’ own websites because they fell outside the remit of the CAP Code. The complaints were registered by consumers, businesses and other organisations and typically concerned potentially misleading claims. So expect at least this number of complaints - check the guidelines.

Remember that the CAP code is not a law rather it is a series of guidelines to protect the consumer from misleading or unsavoury advertising. But as you'll know consumers can make a complaint to the ASA who will adjudicate and if necessary request corrective action.

I think the implications for online marketing have been described well on MyCustomer.com on which I base this summary - see the first recommended link below:

1. Websites. All copy and messages on your web site or in social media channels where a business is promoted must be "legal, decent and honest". All claims must be qualified and any statistical data must be properly referenced.

2. Press releases. Press releases are NOT included in the CAP Code. The distinction lies in the labelling of the document and the fact that it is intended primarily for bloggers and journalists, and not consumers.

3. Search engine marketing. Natural search results that turn up via a Bing or Google search are NOT included within the CAP Code (bizarre since they're based on content from the site), however paid ads like Google are a form of advertising and fall within the remit of the code.

4. Social media conversations. This is the one worth understanding: user generated content falls within the new remit only if it is adopted and used proactively within an organisation’s own marketing communications, on its own website or in other non-paid for space online under the organisation’s control. Comments about a brand on a company’s Facebook page by consumers as part of a natural conversation don’t fall under a code, but if, for example, a company used those quotes to promote its business on its home page then they would fall under the ASA’s scrutiny.

Since UGC is particularly important I have extracted the relevant part of the guidelines - see second link below:

3.9. User-generated content (UGC) is content created by private individuals. In establishing whether UGC should be regarded as a marketing communication, and consequently fall within the remit of advertising self-regulation, the primary and preliminary areas of enquiry to be considered are:

Did the website owner originally solicit the submission of UGC from private individuals, then adopt and
incorporate it within their own marketing communications?

Did a private individual provide the website owner, on an unsolicited basis, with material which the website owner subsequently adopted and incorporated within their own marketing communications?

3.10 If the answer to either question is yes, (and of course that the content of the material and the form in which it is re-used by the marketer does itself constitute an advertisement or marketing communication by the marketer) then prima facie the UGC under consideration will be regarded as a marketing communication.

Remember that in this area, UK laws are already in place -  The Consumer Protection from Unfair Trading Regulations (CPRs). Of particular concern are "paid endorsements within social media. The OFT announced in a statement on 13 December: "Online advertising and marketing practices that do not disclose they include paid-for promotions are deceptive under [CPR] fair trading laws. This includes comments on blogs such as Twitter". We can assume this also means that affiliate-based endorsements should also be clearly stated.

This announcement follows a July 2010 OFT investigation into whether PR firm Handpicked Media (HM) had paid bloggers to write exclusively about the firm’s clients - see this summary of the case.

5. Video. Promotional videos such as adverts or content aimed at selling a product or search are covered by the code but editorial video content intended to communicate an opinion are not.

Recommended links:

• MyCustomer.com interpretation by Stephen Waddington
• The CAP code online remit - download the PDF originally published Sept 2011