The requirement that advertising must be identifiable applies to commercial communication. It must be easy to identify advertisements for what they are, regardless of the method of presentation or advertising medium.
This requirement of advertising being identifiable applies to all media and forms, including the social media.
An advertisement must make its intent to market goods or services clear and identify the advertiser. In order for advertising to be identifiable, this information must be given clearly, for example at the beginning of the text in the advertisement.
General principles regarding the identifiability of advertising:
- Commercial messages may not be hidden in other communication.
- The advertisement must identify the advertiser.
- Surreptitious or subliminal advertising is never acceptable.
The provisions of the Consumer Protection Act apply to both advertisers and marketers, regardless of the medium used for marketing.
The requirement of identifiability also applies to the placement of advertising
The requirement of identifiability also applies to the placement of an advertisement. This means that advertisements must be kept clearly separate from other content.
It must also be obvious where the advertisement begins and ends. The way in which commercial content is separated from other content depends on the medium. See below for examples of how an advertisement can be separated from other content in different types of marketing.
An advertorial is an advertisement in a newspaper or magazine that looks like an ordinary article. The reader must always be easily able to tell editorial content and advertising apart.
An advertorial is easier to identify when it includes the text Advertisement.
Native advertising means digital media content that resembles the usual content of the channel in questions but actually is a paid advertisement. An advertisement that looks like an article or recipe is an example of native advertising. Its content has been produced by the advertiser.
Native advertising is easier to identify when the advertisement includes the text Advertisement.
Sponsorship refers to funding or other financial support that a sponsor provides to TV programmes for the purpose of promoting the sales or recognition of the sponsor’s products or services.
The sponsor’s name or logo must be clearly displayed at the beginning or end of sponsored programmes.
Product placement means placing a product, service or trademark in an audiovisual programme in return for payment. Product placement is usually prohibited. However, it is permitted in films and serials as well as sports and entertainment programmes.
Viewers must be told clearly that the programme contains product placement. This information can take the form of either a text or a visual product placement identifier.
Influencer marketing means using influencers in marketing, especially bloggers and vloggers operating in the social media. For example, the influencer may create content about a company’s products or services for their channel.
The requirement that advertising must be identifiable also applies to influencer marketing, regardless of the medium used. This is why commercial cooperation must be labelled clearly at the very beginning of the publication, for example with the text Advertisement or Commercial cooperation. The influencer must identify the company with which the commercial content has been produced.
Product samples sent to influencers
If a company sends its products to an influencer and hopes for positive assessments, the company should advise the influencer to openly tell their followers in the postings about the cooperation or the fact that they have received benefits without payment.
Companies must also provide adequate instructions for other types of influencer marketing. The special features of each device and medium used for marketing must be addressed in the instructions.
For example, the Consumer Ombudsman has found that the YouTube feature which allows an influencer to add the disclaimer Includes paid promotion to their videos is not sufficient on its own, as it does not indicate who the advertiser is.
Presentation affects the identifiability of advertising and can make it more difficult to identify an advertisement
The consumer must be able to identify an advertisement for what it is, even without looking at it closely. An advertisement may be difficult to identify if, for example
- the advertisement has been written to look like an article
- a TV advertisement resembles a well-known programme and uses the same actors
- social media influencers advertise products in a format that resembles their usual content
- toys are advertised by a well-known cartoon character.
Interviews with private individuals in advertisements
Interviews or statements given by private individuals may be used in marketing as long as their claims about the characteristics and effects of the products can also be proven on a general level and the commercial intent can be easily identified.
An advertisement may not be disguised as an invoice
An offer may not look like an invoice or a debt collection letter. Consumers must be able to easily understand that an advertisement is an offer to which they do not need to respond unless they wish to order the product.
The consumer must be told about a commercial intent
When a company intends to sell the consumer something, it must clearly inform the consumer of this when contacting them for the first time. In telesales, the consumer must be told about the commercial intent at the very beginning of the telephone conversation.
Products may not be marketed as gifts, draw prizes or other special benefits if the consumer is expected to pay for them. The vendor must also not pretend that they are conducting research when they actually intend to sell products, and research must be kept clearly separate from marketing.
Rules of marketing addressed to children and young people in a nutshell
Children and young people under the age of 18 have a special position under the Consumer Protection Act. Marketing targeted at persons who are under 18 is assessed more strictly than other marketing, as underage persons can be considered more susceptible to the effects of marketing because of their limited knowledge or experience.
The child’s or young person’s level of development and age have a major impact on their ability to understand marketing. For example, the age of the children or young people who are typically interested in the advertised products may be a factor that influences the assessment. The marketing channel used may also be a factor.
Marketing that commonly reaches underage consumers is assessed on the same criteria as marketing specifically targeted at this group.
General principles of advertising targeted at underage consumers:
- Direct exhortations to buy may not be made by children or addressed to children.
- Advertisements may only be shown in connection with a children’s programme whose duration is over half an hour.
- Games and other entertainment must be kept clearly separate from advertisements.
- Child actors may not be used in advertisements without a particular reason. Advertisements may feature children if the advertised product is genuinely relevant to them.
Identifying advertising is difficult for children
Young children cannot easily spot the difference between an advertisement targeted at children and a children’s programme. Advertising is particularly difficult to identify if it is disguised as a task, competition, story or cartoon.
Underage consumers as targets for influencer marketing
Children, and particularly young people, are often a key target group for influencer marketing. It is important for both the influencers and the companies working with them to take the special position of underage consumers into account in their marketing.