New ASA guidance on enhanced disclosure of ads aimed at children

The question

What advertising disclosures does the ASA expect in advertising targeted at children? 

The key takeaway

Creators of ads aimed at under 12’s have to do more than just label the content as “advertising” and must ensure that the disclosures clearly and obviously stand out from all surrounding editorial content.

The background

Way back in May 2017 the ASA released guidance stating that enhanced disclosures must be made by advertisers in circumstances where a marketing communication was (a) directed at under 12s, (b) highly immersive and (c) integrated into the surrounding context to such an extent that it was unlikely that it would be identified from the setting in which it appeared. The ASA suggested that an “enhanced disclosure” should be included, namely a label or marker adequately indicating the ad’s commercial intent should be displayed alongside or across the communication in a “prominent” and “interruptive” manner. 

The development

On 15 June 2022 the ASA released further guidance entitled ‘Recognising ads: Children’, including reference to two own initiative rulings, which clarify the scope of “enhanced disclosure”. The guidance describes how a “highly immersive” marketing communication could be characterised primarily by some sort of “prolonged or in-depth interactivity” such as that often displayed by audio-visual/gaming content. Similarly, the guidance outlines how a marketing communication can be considered “significantly integrated” when it is embedded into the “surrounding editorial context” such that any demarcation between the ad and the content was difficult or impossible to discern. 

Such content when marketed at under-12s would be the subject of “enhanced disclosure”. The ASA states that “enhanced disclosure” consists of a marker/label that is:

• within or directly next to the ad;
• of significant size and colour to stand out;
• readily apparent before (if possible) or immediately at the point of engagement; and
• clear as to who the advertiser is and transparent as to its commercial intent.

Two recent rulings provide some additional direction as to how the above guidance will be implemented on a practical level.

In the case of IMC Toys UK Ltd t/a Cry Babies, 15 June 2022; IMC Toys UK Ltd t/a VIP Pets, 15 June 2022 for instance, the ASA ruled against IMC’s use of banner ads when marketing children’s toys, despite the ads including a label in capital letters that had been placed in the centre of the ads denoting that the banners were in fact ads. The banner ads in question were placed directly next to various games and other ads which were all formatted in an identical manner, utilised similar colour schemes and were displayed in similar font sizes. The ASA determined that this effectively blended the disclosure with the ads/games surrounding it and was therefore not sufficiently prominent or interruptive enough to constitute effective disclosure.

The ASA reached a decision on similar grounds in the case of Capri Sun GmbH, 15 June 2022. The case involved a banner ad for Capri sun in the games section of an online retailer which included on its thumbnail an orange/white text saying “advertisement” in block capital letters. Since the surrounding content was also characterised by an orange/white colour scheme the ASA held that children were unlikely to be able to differentiate between the disclosure and the editorial content due to the two, in this instance, being significantly visually integrated. The disclosure in question, therefore, was not judged to be sufficiently “enhanced”.

Why is this important?

The guidance and rulings impact how advertisers market their content to children, entailing a review and potentially re-calibration of their existing marketing schemes to ensure that disclosures/content are displayed in accordance with the ASA’s directions. 

Any practical tips?

Advertisers should ensure that any existing marketing communications aimed at children and/or those currently in the production stage clearly and sufficiently separate disclosures from all surrounding content. A reference to the ad being ‘advertising’ is not enough. Disclosures and content therefore should not utilise the same colour schemes, fonts or company branding. There should be a particular emphasis on reviewing audio-visual and online content as these can include displays that interact with the user, making it harder for them to distinguish between any content/ads that they see.
On a wider level, online platforms will also need to keep an eye on the EU’s new Digital Services Act (likely landing in 2023) which imposes a total ban on advertising targeted at children. Whether the UK (post-Brexit) follows suit remains to be seen, but one thing’s for sure - the rules are certainly tightening around the online targeting of children.

Autumn 2022