The ASA has extended its control to all online marketing communications. David Bond & Sonal Patel tell you what you need to be aware of
As most cosmetics companies will be aware, the Advertising Standards Authority (ASA) heavily regulates the health and beauty sector in broadcast and print media. Its regulation of online space, however, has traditionally been very limited and restricted to paid for advertising such as pop-up and banner ads, paid for (sponsored) searches, viral ads and web-based sales promotions. But as of 1 March this remit has been widened significantly, with far reaching implications for cosmetics companies.
Significantly the ASA’s remit has not previously covered marketing messages that a company posts on its own website or on non-paid for online space such as a brand’s own Facebook page. Although subject to consumer protection laws such as the Consumer Protection from Unfair Trading Regulations 2008, the lack of a focused body to police online marketing communications has created a significant regulatory gap. As a result many advertisers have taken a more relaxed approach to how they market their products and services online, making claims which would otherwise have fallen foul of the British Code of Advertising, Sales Promotion and Direct Marketing (the CAP Code). For example, making robust efficacy claims (eg ‘non-irritating’, ‘clinically proven’, ‘see results’) and superlative claims (eg ‘leading’, ‘best selling’) about their products and services and using promotional videos, testimonials and before and after photos which may not otherwise meet the ASA’s substantiation requirements.
As of 1 March 2011, following a formal industry recommendation, the position changed. The ASA’s remit has now been extended to cover all online marketing communications. This represents a major expansion of the ASA’s remit and will have a significant impact on cosmetic companies.
The new remit is intended to cover not only a company’s marketing communications on its own website but also any marketing communications in other non-paid for space under its control, such as social networking sites like Facebook and Twitter. The new remit is not intended to cover journalistic and editorial content but the distinction between editorial and marketing content can be fine. So when does editorial become a marketing message?
Initial guidance infers that marketing content (eg claims about products and services, other advertising messages, direct marketing and sales promotions) will fall within the scope of the CAP Code. However, press releases, other public relations material, corporate pages and news do not generally fall within the scope of the CAP Code, unless such editorial content contains a marketing communication. For example, if a press release reports on a company’s performance it is likely to be seen as editorial content, unless it includes a marketing communication in which case it will be deemed to be a marketing communication and will fall within the ASA’s remit. When determining whether content is editorial and marketing, the ASA will consider whether the marketer’s intention to sell the product was central to the communication.
The implications for cosmetics brands will be far reaching and the sheer volume of complaints about online advertising will result in a high volume of ASA investigations in this area. Therefore companies need to be aware of the extent of the ASA’s new remit and be prepared to deal with these investigations by implementing the following steps:
• Identify their non-paid for online space, eg their company website(s), social media and branded pages under their control (Facebook, Twitter etc)
• Conduct a thorough audit of the content on their online space
• Distinguish between editorial content and marketing communications
• Apply the CAP Code rules to all marketing communications as rigorously as they would vet their advertising in traditional print and broadcast media
• Remove or amend all non-compliant content from their online space
• Ensure that they have sufficient documentary evidence in place to substantiate all claims made in their online space
• Vet all new content in their online space in accordance with the steps set out above
• Put personnel and processes in place to deal with future ASA investigations as and when they arise
In terms of sanctions, the ASA has indicated that its current sanctions (requesting the withdrawal of infringing advertisements and naming and shaming the offenders) will continue. The ASA has also indicated that additional sanctions will be made available for use against infringers. These could include:
• Removing paid-for search advertising – essentially the ASA would request search engines to remove ads that link to any page hosting a non-compliant marketing communication
• The ASA publishing its own paid for search advertisement to highlight an advertiser’s continued non-compliance with the CAP Code
Although not proposed at this stage, if these additional sanctions do not prove sufficient further powers might be required such as requiring non-compliant advertisers to pre-clear all internet marketing communications or for a full campaign to be withdrawn (in all media) if the internet element falls foul of the CAP Code. Another possible sanction would be to introduce a fine for online infringers which might go some way towards meeting the increased funding requirements, although this would mark a significant departure from the ASA’s existing sanctions and financing.
Regulating online advertising raises a number of questions and further guidance will be required before the industry fully understands the impact of this change. Until then cosmetic companies are advised to approach online marketing strategies in the same manner as traditional print, broadcast and paid for online marketing.