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Lewis Silkin Legal Advice for APA members: Inadvertent advertorial?

Are you a retail customer publisher involved in the practice of selling opportunities to suppliers to feature their products in magazine editorial?

Say you create a DIY customer magazine for a DIY store.  You're doing an article on how to erect and paint sheds.  You are looking to make some extra revenue by selling the opportunity to a tool supplier to feature their drills, paint brushes and screwdrivers in the article. 

Although you're taking the lead on writing the article and effectively in control of the editorial, this may not be sufficient to avoid the article being classed as an "advertorial" due to the unidentified product placement. 

If you fail to identify marketing communications as such to the consumer, you risk breaching the Committee of Advertising Practice (CAP) Code, which governs the content of UK non-broadcast marketing communications, and also the Consumer Protection Regulations, which deals with unfair commercial practices.   Whilst Trading Standards is the body responsible for prosecuting offences under the Consumer Protection Regulations, in most cases involving suspected misleading advertising, they will refer the matter to the Advertising Standards Authority ("ASA") for investigation.  The ASA is the body that also enforces the CAP Code.

You can play it safe and avoid the negative PR associated with a Trading Standards investigation into unfair commercial practices or an upheld Advertising Standards Authority (ASA) adjudication for misleading advertising (not to mention an irate client with easy access to power tools!) by clearly drilling it home to the reader the fact that this is a "promotional feature in association with X" or a "sponsored article".

The fact that you are selling the opportunity for a supplier's brand and products to be featured more prominently in communications, when such communications could be interpreted as the publisher's unbiased editorial, is a key factor here. 

The rationale of the rules in play here is to prevent suppliers drawing on the credibility that is lent by the publisher to the products marketed and to promote transparency of a commercial arrangement to the consumer.  In our example, there is goodwill in the DIY store brand and consumers may well pay attention to the fact that a respected store has singled out certain products as being more favourable or effective than other competing products, when this opinion is in fact biased by financial payment rather than on objective review.

Customer publishing, as you know, is a grey area and there is no unanimous view as to whether the publication as a whole is editorial or advertising.  Arguably, customers reading a retailer magazine expect it to be a platform for the retailer to promote the products it stocks.  This makes the likelihood of complaint to the ASA or Trading Standards for failure to identify the commercial arrangement lower than would be the case with a general publication.  However, it only takes one complaint to launch an investigation....and you don't want to be found cowering in your newly assembled shed.

Helen Bowyer is a senior solicitor at Lewis Silkin LLP

helen.bowyer@lewissilkin.com

Posted in Print
23rdMar 2012


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