Opinion

Is the ASA killing native advertising?

The ASA's latest decision on native advertising has worrying implications for both brands and publishers, both of which face continuing regulatory challenges, says Brinsley Dresden, partner and head of advertising & marketing at law firm Lewis Silkin.

The greatest concern is that the balance between freedom to advertise and consumer protection has now been tipped too far towards the latter, undermining the utility of native advertising for both brands and publishers.

The latest decision concerned an advertorial on BuzzFeed for Dylon’s Colour Catcher. Part of the problem stemmed from the fact that the content was similar in look and feel to the editorial content on a typical BuzzFeed post, being a ‘listicle’ entitled '14 laundry Fails We’ve Experienced'.

In the USA, the FTC recently declared that 'Promoted By' implies payment by a brand, but fails to communicate editorial control

However, immediately below the headline of the article was Dylon Colour Catcher logo and text stating 'Dylon Brand Publisher', with a link to the Dylon page on BuzzFeed. This is in contrast with BuzzFeed editorial content, where there are photographs of the author, their name, and a title, such as 'BuzzFeed Contributor' or 'BuzzFeed News Reporter'.

The ASA accepted that users who came to the Dylon listicle via the BuzzFeed homepage would also have seen the words 'Promoted by' in white letters on a golden yellow background and realise that the article was advertorial.

Clarification required 

In the USA, on the other hand, the FTC recently declared that 'Promoted By' implies payment by a brand, but fails to communicate editorial control. They also accepted users who searched for Dylon on BuzzFeed would have seen a badge with the word 'Advertiser' and the brand’s name and logo in the search listings, so the disclosure as advertorial was sufficient.

But the ASA concluded that people who came to the listicle via other means (e.g. a Facebook link) may not have realised that the material was advertorial. They discounted the wording at the end of the article, which stated: "It’s at times like these we’re thankful that Dylon Colour Catcher is there to save us from ourselves."

That seems reasonable, given the ASA’s insistence in a number of investigations in the last couple of years (such as those against Mondelez and Proctor & Gamble) that users should be made aware of the commercial nature of the content before they engage with it.

More controversial is the ASA’s conclusion that Dylon’s name and logo was "not particularly prominent" and the term "Brand Publisher" did not "adequately convey the commercial nature of the content to consumers," so that that the ad was not "obviously identifiable" as such.

It seems that the ASA is only willing to accept that words such as 'advertisement feature' are sufficient to disclose native advertising

The CAP Code says that compliance should be "assessed according to the marketing communication’s probable impact when taken as a whole and in context. That will depend on the medium in which the marketing communication appeared, the audience and its likely response, the nature of the product and any material distributed to consumers".

On that basis, there is a contrast between BuzzFeed, which is a commercial platform that carries a significant proportion of advertorial content, and online versions of traditional media. For example, in another recently upheld complaint about native advertising by Michelin in The Daily Telegraph, it may have been reasonable to conclude that users of the Telegraph’s online edition were less likely to anticipate that they were reading an advertorial, so the flags needed to be that much clearer.

The average consumer

The ASA is also supposed to make assessments on the basis of the "average consumer" viewing the relevant ad. Both the CAP Code and consumer law say that this notional consumer is "reasonably well-informed, reasonably observant and circumspect".

Even if the average consumer seeing the Dylon listicle via a Facebook link had never been on BuzzFeed before, surely they would have noticed the Dylon name and logo? And even if they did not know the dictionary definition of 'Brand Publisher', those words would be sufficient to make clear that Dylon had paid for the promotion, which is the relevant legal test, rather than the ASA’s higher test of being "obviously identifiable".

It seems that the ASA is only willing to accept that words such as 'advertisement feature' are sufficient to disclose native advertising. Given that both The Daily Telegraph and the BuzzFeed reviews were triggered by a single complaint, it seems unlikely that the average consumer is quite as gullible as the ASA believes.