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ASA raps podcast for not being easily identifiable as an ad

Published on 10 October 2022

The question

How careful do you need to be with advertising disclosures for podcasts which contain marketing communications? 

The key takeaway

There needs to be a clear distinction between personal and marketing content when podcasters refer to products, especially when there are existing financial arrangements in place. Where the creative content directly promotes a brand and is connected to the supply of that branded good, the ASA is likely to assess the content as a marketing communication regardless of the extent of editorial control. In turn, this means that high, upfront levels of advertising disclosure need to be deployed. 

The background

On an episode of Steven Bartlett’s popular podcast The Diary Of A CEO, titled “World’s Leading Psychologist: How To Detach From Overthinking and Anxiety: Dr Julie Smith E122” an ad for Huel Ltd (Huel) products was played approximately 31 minutes into the podcast. The ad started with an audible page turn and Mr Bartlett said: “Quick one. For many years people have been asking for a coffee flavoured Huel and quite recently Huel released the ice coffee caramel flavour of their ready to drink Huel. And I have just become hooked on it over the last couple of weeks…Make sure you try the new ready to drink flavours. The caramel flavour’s amazing, the new banana flavour as well is amazing and obviously as I said the iced coffee caramel flavour has been a real smash hit so check it out. Let me know what you think on social media. I see all of your tags, tweets and Instagram posts on Huel. Back to the podcast.”. 

A page of a book was then audibly heard turning again. The description of the podcast included text that stated, “Sponsor: Huel – https://my.huel.com/Steven“. The ASA upheld the complaint that the ad was not obviously identifiable as a marketing communication and advised the podcaster to remove the ad in the form complained of and make clearer the commercial intent of advertising content in podcasts in the future.
The ASA’s decision

Huel initially responded to the ASA by saying they did not believe the podcast included an ad because they had no editorial control over its content. They admitted that though some non-prescriptive financial arrangements were in place with Mr Bartlett, they had no affiliate relationship with him, and he was not paid a fee for any products purchased through the link on his podcast. Huel further stated that the audible page turn markers, and the change in tone for the disputed section were in any event, consistent with Mr Bartlett’s creative style of indicating ads and because of this, more explicit markers were unnecessary. He also confirmed this with the ASA, adding that he did not receive any direct benefit from listeners purchasing products through the link on this podcast episode. He explained that he felt that his listening audience were always clear when he was sharing marketing communications, but in the interest of good order, made efforts to add further markers to the disputed podcast section following ASA contact. 

Although the ASA acknowledged that Mr Bartlett took steps to try and distinguish the advertising content from the rest of his content, they felt he did not go far enough. Despite, both Huel and his comments about there being no affiliate relationship and no brand editorial control, the ASA drew attention to the fact that he was in fact a non-executive director of Huel and had pre-existing financial arrangements. Against this backdrop, the ASA treated the presence of a link to the supply of Huel goods and services in the podcast description as enough evidence for the disputed podcast content to fall within its remit, to be assessed as marketing communication. The ASA further noted that the ad did not begin with any upfront wording to be clearly identifiable as an ad. Mr Bartlett’s voicing of the advert was also considered too similar in tone to his editorial material and therefore easily missed or overlooked by some listeners. The ASA upheld this complaint and concluded that the overall commercial intent behind the ad was not made clear upfront and it was not obviously identifiable as a marketing communication.

Why is this important?

There has been a huge growth in audio advertising, and podcasts remain an increasingly popular creative medium. All podcast participants need to stay vigilant to stay compliant with advertising rules. This ruling highlights how the ASA are looking more holistically at several factors in order to assess the existence of marketing communications, and the high level of upfront advertising disclosures it then requires for the promotion of products or services.

Any practical tips?

When working with creatives and advertising audio content in any format, don’t be over reliant on audience recognition of creative markers. To avoid ambiguity, if any form of commercial relationship exists, it is advisable to always use upfront wording to signify commercial intent, even if there is no formal contractual arrangement. Being proactive and over communicative, is better than risking the harmful negative publicity which flows from being called out by the ASA. 

Autumn 2022