How some brands choose to communicate on their websites and through social media has long been viewed as the Achilles heel of marketing regulation.
The subject was thrown into sharp relief in 2005, when a report by The Food Commission named and shamed brands, including Chupa Chups, Panda Pop, Smarties, Nesquik and Frosties, amid claims that they were pushing their wares to children via the internet.
The point at issue was that the brands were using methods to do this that would not be allowed on television or on posters. For example, Chupa Chups talked online about its lollies being 'good for you', describing them as a tasty way to give your brain a boost. Today, its brand website carries a less controversial tagline 'Life less serious'.
Traditional media advertising has been regulated by the Advertising Standards Authority (ASA) for decades, yet despite the growing use of digital marketing communications by brands, online content has remained unregulated.
In 2005, food lobby group Sustain, described the situation as 'scandalous', adding that the ASA's response to its complaints was always 'It's nothing to do with us, guv'.
Nevertheless, the ASA has long acknowledged the loophole. Its own figures reveal that nearly two-thirds of complaints to the watchdog about digital marketing were not investigated because they fell outside its jurisdiction.
That is all about to change. As of 1 March, the ASA's remit is extending to include what it refers to as 'marketing communication'. Websites will have to be compliant with the rules in less than a month's time.
Here, the Committee of Advertising Practice (CAP) answers some of the key questions that marketers have been asking in the lead-up to the changes to regulations.
How is 'marketing communication' defined under the new remit?
The ASA defines marketing communication on a website as a 'type of communication for a good, service, opportunity or gift that primarily sets out to sell something'. A less complicated way of looking at it is that the ASA will regulate the kinds of claims on websites that it already deals with on a day-to-day basis in media space it has traditionally regulated.
Will only '.co.uk' websites be subject to the rules?
No. They could also cover marketing communications on a '.com' website. The remit covers all marketing communications from organisations operating from the UK, both on their own sites and in other non-paid-for space online under their control, such as branded Facebook and Twitter pages.
Will user-generated content (UGC) on company websites be covered by the code?
UGC is not included in the ASA's remit extension. However, if a company incorporates UGC in its own marketing, it will be covered. This must be considered on a case-by-case basis, warns the ASA, taking account of the context in which it is placed.
What is not covered under the new remit?
Websites contain lots of material that is not marketing so will never fall under the ASA's remit. The watchdog says this is not about creating new rules. As with traditional media, the regulations will not cover press releases, corporate reports, editorial content, classified private ads, political advertisements and investor relations.
ASA'S EXTENDED REMIT
What are the ASA's sanctions against non-compliant advertisers?
The ASA says its 'primary concern is not to punish advertisers'. However, alongside its present powers, the regulator has been given further sanctions. These include:
- An enhanced name-and-shame policy - providing details of an advertiser and the non-compliant marketing communication on a new section of the ASA website.
- Removal of paid-for search advertising - ads that link to the page hosting the non-compliant materials may be removed with the agreement of the search engines.
- ASA paid-for search advertisements - the ASA could place advertisements online highlighting an advertiser's continued non-compliance.