Most would agree that there is a clear distinction between advertising and editorial content, however the line becomes blurred with the introduction of advertorial: promotional content which is explicitly designed to mimic editorial format.
Publication and brand tie-ups are certainly not uncommon, but brands who choose to use this as an advertising tool - as well as those writing the content - must be wary of how they present such a feature.
Say, for example, you are involved in the production of a customer magazine for a DIY store. The latest piece is on how to erect and paint sheds and you are looking to make some extra revenue by selling the opportunity to a tool supplier to feature their drills, paint brushes and screwdrivers in the article.
Although you’re taking the lead on writing the article and are therefore effectively in control of the editorial, this may not be sufficient to avoid the article being classed as an advertorial due to the unidentified product placement.
Promoting a particular product within a piece that appears unbiased and isn’t highlighted as being promotional could land you in hot water.
If you fail to identify marketing communications as such to the consumer, you risk breaching the Committee of Advertising Practice (CAP) code, which governs the content of UK non-broadcast marketing communications, and also the Consumer Protection Regulations, which deal with unfair commercial practices.
While Trading Standards is the body responsible for prosecuting offences under the consumer protection regulations, in most cases involving suspected misleading advertising they will refer the matter to the Advertising Standards Authority (ASA) for investigation. The ASA also enforces the CAP code.
The best way to play it safe and avoid the negative PR associated with a Trading Standards investigation or an upheld ASA adjudication is by clearly drilling it home to the reader that this is, in fact, a 'promotional feature in association with X' or a 'sponsored article'. This leaves little ambiguity as to the motives behind the feature and ensures that consumers are not misled.
The fact that you are selling the opportunity for a supplier’s brand and products to be featured more prominently in communications, when such communications could be interpreted as the publisher’s unbiased editorial, is a key factor.
The rationale of the rules in play here is to prevent suppliers drawing on the credibility that is lent by the publisher to the products marketed and to promote transparency of a commercial arrangement to the consumer.
In our example, there is goodwill in the DIY store brand and consumers may well pay attention to the fact that a respected store has singled out certain products as being more favourable or effective than other competing products, when this opinion is in fact biased by financial payment rather than on objective review.
Customer publishing is a particularly grey area and there is no unanimous view as to whether the publication as a whole is editorial or advertising. Arguably, customers reading a retailer magazine expect it to be a platform for the retailer to promote the products it stocks.
This makes the likelihood of complaint to the ASA or Trading Standards for failure to identify the commercial arrangement lower than would be the case with a general publication.
Whether the advertorial is featured in a customer magazine or a national newspaper, inadvertent advertorial can be costly. Remember, it only takes one complaint to launch an investigation ... and you don’t want to be found cowering in your newly assembled shed.
Helen Bowyer is a senior associate in the media, brands and technology team at Lewis Silkin LLP. Helen can be reached at helen.bowyer@lewissilkin.com