Helen Hart, Regulatory Affairs Manager, IPM
On Wednesday 7th
November I attended a meeting of CAP's promotional marketing and direct response panel, which provided feedback to the ASA and CAP about issues directly
affecting promotional marketing. This is of direct relevance to the IPM and its
One of the issues
that arises is deciding whether something falls within the remit of the CAP
Code and in particular the promotional marketing section. Quite often you
see ASA adjudications in which the advertiser has claimed that their marketing
material wasn't advertising and therefore didn't fall within the remit of the
CAP Code, and so the ASA should not be dealing with it. Generally
the ASA takes a robust view of its role and the scope of the Code, taking action if it believes certain activity is within scope. Sometimes CAP and
the ASA ask their advisory panels for an industry view.
The CAP Code
includes a section at the beginning which sets out its scope. It includes
obvious and more traditional areas such as press and television
advertising, as well as possibly less obvious such as the content on
advertisers' own websites and in tweets.
section does not specifically define advertising, so there is still
room for disagreement. For example, in the past, people have argued that
leaflets about wind farms were not advertising. The distinction between
editorial and advertorial is constantly being considered, especially when it
comes to influencer and social media marketing.
As well as the
remit of the Code generally, section 8 of the Code applies specifically to
sales promotions, so extra arguments can arise about whether an
activity is a promotion or, for example, just a business scheme which
does not include promotional aspects. A non-exhaustive list of promotional
marketing techniques includes: 'two for the price of one' offers, money-off
offers, text-to-wins, instant-wins, competitions and prize draws. The rules do
not apply to routine, non-promotional, distribution of products or product
extensions, like one-off editorial supplements (in printed or electronic
form) to newspapers or magazines.
CAP has issued guidance
on remit in which it points out that there are
many shades of grey involved in decisions about what is and what is not covered
by the Code and the considerations are not always straightforward. If marketers
are in any doubt, they can seek advice from the Copy Advice team or
from the IPM Legal Team on whether their chosen medium is likely to be
subject to the CAP Code. The ASA has also published similar guidance
which includes useful examples.