The digital world has enabled innovative ad formats to flourish. One such format is the advergame (be it on a social media site, an advertiser’s own web site or a mobile app).
The CAP Code specifically states that advergames are within its scope. It is also important to be aware that, as part of the ASA’s ‘digital remit‘, the CAP Code will not only cover advergames in online paid-for space, but also in non-paid-for space (eg on the advertiser’s own web site, or as an app or on a social media site under the advertiser’s control).
Complaints regarding advergames have generally related to concerns regarding the appeal of the advergame to children and whether it is sufficiently clear that the game is an ad. There have also been a few adjudications relating to the use of an advergame as part of a mechanic for a prize promotion (note that this may create additional issues under the Gambling Act 2005 which I do not go into in this article).
Last year CAP decided to publish an advice note about advergames. In the advice note, CAP says that advergames offer businesses innovative and potentially exciting means to market their brands, products or services but they should be provided responsibly, particularly with regard to their target audience.
Prize Promotions
Check your T&Cs!
The rules regarding prize promotions such as competitions and random draws are contained in section 8 of the CAP Code. There are various requirements regarding both the administration and the publicity given to promotions. For example, r 8.2 contains a general requirement that promotions must be conducted fairly and avoid any unnecessary disappointment, r 8.14 requires that adequate resources are made available to administer the promotion, r 8.15.1 requires prizes to be awarded as described in the marketing communication, and r 8.17 requires that all applicable significant conditions for the prize promotion are made available to entrants.
It is important that, where an advergame is used as the mechanic for a competition, there is no disconnect between the T&Cs for the promotion and how the game actually works. This kind of disconnect was revealed in an adjudication from 2009 where the ASA held that Kimberly-Clark had breached the rules in relation to a competition it ran on the Andrex web site.
The competition involved a game where players had to click on 3 question marks in an online game-card displaying a grid of nine question marks. Text underneath stated:
‘Click on 3 question marks in the grid – if you reveal 3 images that match, you win that prize!…’
Someone complained that the game was unfair because it transpired that some of the online game-cards had no matching images at all. Kimberly-Clark told the ASA that the insertion of winning game-cards was subject to an automated random process during the campaign, and that it was essential to have certain game-cards with no winning combinations to ensure that prize winning combinations would be available to players throughout the entire promotion.
However, somewhat harshly (I think), the ASA thought that the on-screen instructions as well as the T&Cs provided insufficient information to users. It should have been explained to users very clearly that not every game-card would contain three matching images.
Beware the hackers!
Never underestimate the willingness of people to cheat. Two months after the Andrex adjudication referred to above, there was another adjudication regarding an advergame used as the mechanic for a competition on a web site called ‘Shinyshack‘. The competition involved a game called ‘Shinyballs’ where the player with the highest score would win a £500 voucher.
During the course of the competition, Shinyshack had started to notice some very high scores which looked suspicious to them. On the day before the closing date, they discovered (based on their server data) that the top ten scores were in fact all fraudulent.
It transpired that by decompiling the game’s flash file, it was possible to submit fake scores. It was therefore impossible for Shinyshack to say with any confidence that any of the high scores were genuine. Therefore they decided to give the prize money to charity. They posted a message on the site on the day the winner should have been announced, telling users that some people had been manipulating their scores and therefore no one would win the competition and the money would be donated to charity.
Someone complained that the competition had been administered unfairly because the competition either should have been withdrawn sooner or the prize money should have been given to the person with the highest genuine score.
The ASA did not agree and thought that Shinyshack had in fact done the right thing. The ASA’s reasoning was based on the fact that (amongst other things) (a) Shinyshack had not anticipated that players would go to the lengths of decompiling the file, (b) it was very difficult for Shinyshack to determine which of the high scores was genuine, and (c) Shinyshack had explained the reasoning behind their decision on the web site on the day the competition closed.
In reality, Shinyshack had actually received positive feedback from participants regarding the decision to give the money to charity and it is difficult to see how the donation to charity could be seen as anything other than the most reasonable use of the money in the circumstances. I wonder whether the person who complained was one of the hackers…
Be Clear – It’s An Advergame
Section 2 of the CAP Code contains the general rules about making sure advertising material is clearly identifiable as advertising. In particular, under r 2.1 marketing communications must be ‘obviously identifiable as such’.
In an adjudication from 2008, the ASA held that Coors had breached this requirement because a screenshot used as an ad for an online Carling football game was not obviously identifiable as an ad.
The screenshot was hosted on the Mousebreaker free games web site controlled by IPC Media. When users clicked on the screenshot they were redirected to the Carling web site where the game was hosted.
The screenshot itself did not contain any Carling branding. However, based on the fact that (a) there was a commercial agreement in place between Coors and IPC Media (under which Coors paid IPC Media to host the screenshot and promote the game) and (b) the screenshot directed people to the game which did contain Carling branding, the ASA thought that the screenshot was advertising – it was analogous to a sponsored link.
As a result, both the screenshot and link had to be taken down from the site. Whether the risk of this happening had been covered off in the agreement between Coors and IPC Media is another story…
The Coors adjudication above can be contrasted with an adjudication from mid-February this year regarding a series of online Weetabix advergames. The games included ‘Weetos Leap of Faith‘ (in which players tried to make a Weeto leap into a bowl of milk) and ‘WeetaKid‘ (in which the aim was to control a character in collecting as many Weetabix as possible against the clock).
Professor Agnes Nairn and the Family and Parenting Institute complained (amongst other things) that the advergames were not obviously identifiable as marketing communications.
It is worth noting that the CAP guidance regarding advergames states that, when considering whether advergames conform to r 2.1, the ASA will consider the context in which the advergame is made available, and any references to the product, brand or organisation in or around the game.
In this case, the logos of the relevant Weetabix brands were prominently displayed on the web sites, the games actually featured Weetabix products, and there were also prominent links to TV ads for the products. On this basis the ASA thought the advergames were obviously identifiable as marketing.
However, even though the Weetabix advergames did not breach r 2.1, they were held to breach other rules in the CAP Code (see below).
Children’s Games
Most of the complaints to the ASA about advergames have generally been about children’s games. There have also been various reports and campaigns in this area (eg by the Family & Parenting Institute and the Kaiser Family Foundation). In many cases it is these types of campaign groups who are the ones complaining to the ASA about the advergames.
Keep it real
Section 5 of the CAP Code contains the general rules regarding advertising to children (for the purposes of the CAP Code, children are under 16).
An important rule is r 5.2 which requires that ads targeted at children must not exploit their credulity, loyalty, vulnerability or lack of experience. As part of this rule, children must not be made to feel inferior, unpopular, or cowardly etc for not buying the product.
In the recent adjudication on the Weetabix advergames referred to above, the ASA looked at various rules under the CAP Code and held that, amongst other things, the rules regarding the exploitation of children’s vulnerabilities had been breached. This was due in particular to the fact that some of the games (on a smartphone app which had been created as part of the campaign) featured various on-screen prompts which encouraged the character (‘Weetakid’) to eat. The prompts included the following:
‘I really think you should eat something. How about it?’
‘What?! No Weetabix?! Why make things harder for yourself?’
‘Tired is not a good look for you. Why not eat something?’
Despite Weetabix’s argument that children who played computer games disassociated what happened in the game from the real world, the ASA thought that the prompts blurred the lines between the ‘fantastical WeetaKid world and the real world’. The issue was that it had not been made clear enough to children that the prompts were directed at the WeetaKid character rather than at the child playing the game. The ASA was also concerned that the language and tone of many of the prompts was persuasive and negative and could lead children to understand that if they did not eat Weetabix they were failing in some way.
For grown-up eyes only
When it comes to alcohol, advertisers have to tread very carefully. Section 18 of the CAP Code contains the social responsibility rules (ie that ads should not imply, condone or encourage immoderate, irresponsible or anti-social drinking).
In particular, r 18.15 contains a specific requirement that ads for alcohol must not be directed at those aged under 18 through the selection of media or the context in which they appear. In determining whether any media are directed at children, the CAP Code contains the following specific test:
‘No medium should be used to advertise alcoholic drinks if more than 25% of its audience is under 18 years of age.’
While in the Coors adjudication it was held that Coors had not made the unbranded screenshot sufficiently identifiable as being an ad for its online Carling football game, the ASA also held that Coors had breached the CAP code by targeting an alcohol ad at under 18s through the selection of certain media. The issue was that Coors were unable to provide satisfactory evidence to the ASA that the Mousebreaker site (which hosted the screenshot) had an audience of fewer than 25% under 18s.
It is interesting to note that Coors had inserted an age verification page which asked for the date of birth of the visitor before the game could actually be played on the Carling web site. However, despite the age-gating mechanism, the ASA still thought there was a breach due to the appearance on the Mousebreaker site of the screenshot which advertised the game.
Keep the kids healthy
Aside from alcohol, by far the most common area of complaint about advergames has been in relation to food (sweets and breakfast cereals in particular).
Section 15 of the CAP Code contains the rules regarding food advertising and includes specific rules about food and soft drinks marketing to children. These rules sit in the broader context of public health policy which increasingly emphasises good dietary behaviour and an active lifestyle etc.
An important rule in section 15 regarding children is r 15.11. This rule requires that ads must not condone or encourage poor nutritional habits or an unhealthy lifestyle in children.
In the Weetabix adjudication referred to above, the complainants (Professor Agnes Nairn and the Family and Parenting Institute) had argued that by featuring Weetos cereal and the Weetos logo, the advergames were generally advertising the Weetos brand and therefore, by association, were also advertising Weetos Bars, which are classified as a product high in fat, salt or sugar (HFSS).
However, the ASA thought this was a tenuous argument and did not think this breached r 15.11. This was because, firstly, Weetos Bars were not actually shown in any of the games themselves, and secondly, the rule in the CAP Code is that advergames must not condone or encourage poor nutritional habits or an unhealthy lifestyle in children, not that HFSS products cannot be advertised to children at all (note that the rules in broadcast, as opposed to non-broadcast media are more stringent). Provided advertising an HFSS product is done responsibly and makes it clear that the product is a treat, the ad can be compliant.
Almost exactly a year before the Weetabix adjudication, the ASA had come to a similar conclusion in an adjudication regarding an advergame for the Kellogs Krave cereal. In this adjudication a campaign group (Sustain: The Alliance For Better Food & Farming) complained that the advergame (which was hosted on Facebook) encouraged poor nutritional habits and an unhealthy lifestyle in children because it featured a Krave cereal piece dressed as a super hero chasing and jumping on pieces of chocolate. In this case, the ASA thought there was no breach because Kellog’s had taken sufficient steps to prevent children from accessing the game. Users were required to log-in to Facebook in order to play – at the point of log-in, the user’s profile was checked to ensure they were over 16 before they could click through to play the game.
A few months after the Kellogs adjudication in August last year, there were four further adjudications regarding advergames which all involved r 15.11 (amongst others). These adjudications were each initiated following one complaint to the ASA by Sustain as part of its Children’s Food Campaign.
The first of these adjudications was against Dunhills (the maker of Haribo sweets). The complaint related to a game on the Haribo site where a cartoon bear collected Super Mix sweets. In this case there was no breach of r 15.11 because the consumption of the sweets was presented in a sufficiently abstract manner. The ASA therefore thought it unlikely that children playing the game would be encouraged to replicate the game character’s consumption.
The next adjudication related to a Sugar Puffs game on the Honey Monster web site. Again, no breach of r 15.11 was found. The game featured the Honey Monster trying to eat as many Sugar Puffs as possible. However, the ASA thought that, just as for the Haribo game, the consumption of Sugar Puffs had been represented in an abstract way (with the Honey Monster running through a maze, trying to avoid wasps) and that players were unlikely to associate the Honey Monster’s consumption of the product with their own.
Sustain were yet again unsuccessful in the next adjudication which related to an online Chewits game provided by Leaf Confectionery. The object of the game was to move ‘Chewie the dinosaur’ around the landscape and to find and eat nine different flavoured Chewits. Sustain complained that the game actively encouraged and rewarded images of excessive consumption of the product. However, the ASA thought that the Chewits game did not encourage poor nutritional habits in children because it was set in a fictitious setting with a cartoon dinosaur chewing on British landmarks in order to release Chewits – therefore the consumption of Chewits was represented in an abstract way. The ASA also noted that only one sweet of each flavour was shown being consumed by the character in the game and that the total number of Chewits that could be collected in the game was less than the number of Chewits found in a standard pack.
It is also worth noting that Leaf Confectionery had made available information on the web site about how to enjoy Chewits responsibly along with a link to the ‘Be treatwise’ web site – the ASA took this into consideration when deciding that there was no breach.
Even though the ASA did not uphold Sustain’s complaints about the Krave, Haribo, Sugar Puffs or Chewitts advergames, Sustain did finally have some success in the last of its advergame complaints from August last year, this time against Swizzels Matlow (who make the Refreshers and Love Hearts sweets).
The Swizzels web site featured an area called ‘Swizzels Town’ containing games, photographs and videos. In particular, there were two games, the first of which involved catching falling sweets into a sweet bag, and the second which involved collecting cola bottles in a maze. Sustain complained the site would make the children interacting with it eat the promoted sweets more frequently.
Regarding the first game (which involved catching falling sweets into a sweet bag), the ASA considered that it was not very long so the total number of sweets accumulated was not particularly high or likely to encourage poor nutritional habits in children. However, a different conclusion was reached about the second game (which involved collecting cola bottles in a maze). There was some on-screen copy with the game which stated the following:
‘Cheeky children visiting the factory have scattered Cola Bottles all around the corridors – you must rush round and collect them all while avoiding the angry parents… Good Luck!’
The game enabled the player to collect almost 100 cola bottles. If players were caught by the ‘angry parents’ in the game, they would lose a life. The ASA thought that the game was quite long (it had three levels) and condoned eating a large number of sweets whilst hiding the fact from parents. All these factors taken together meant that the ASA concluded that the game did irresponsibly encourage poor nutritional habits and an unhealthy lifestyle in children, and was therefore in breach.
Complaints – It just takes one
All of these adjudications are a harsh reminder that it only takes one complaint to start an ASA investigation. Also, the fact that there may have been only one complaint is no guarantee that the ASA will look favourably on the ad. It is worth noting that in the Weetabix adjudication, Weetabix argued that the game had been available since September 2011 (the adjudication was published in February 2013) and, other than the single complaint from Professor Agnes Nairn and the Family and Parenting Institute which prompted the investigation, there had been no complaints from parents that the games had caused children distress. However, this did not prevent the ASA from deciding that there was a breach.
Sacha Wilson is an Associate at Bristows. This article is an edited version of posts which first appeared on his blog, The Digital Law Blog: http://digitallawblog.net/
