Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
For the purposes of this advice, we use the term ‘third sector’ to encompass voluntary, not-for-profit, non-commercial and community organisations, charities, causes (e.g. pressure groups) and social enterprises. The advice is also relevant to public awareness campaigns for governmental and non-governmental entities, for example, for improvements in health, safety, lifestyle and the environment.
Perhaps because of their objectives, the public is sometimes more tolerant of hard-hitting campaigns from the third sector, and the ASA takes this into account when assessing complaints. But marketing communications by charities, non-commercial or voluntary organisations and the like still need to comply with all the general and relevant sections of the Code. For example, marketers should ensure their ads are socially responsible (as per Rule 1.3 and this ruling against an unidentified advertiser), do not cause unjustified or serious fear or distress, and must be obviously identifiable as marketing communications (Rule 2.1 and Department for Levelling Up, Housing and Communities, 12 October 2022).
Marketers should also not materially mislead consumers and must hold evidence for all objective claims (Rules 3.1 and 3.7, Sighthound Welfare UK Ltd, 06 April 2022 and PETA Foundation, 4 September 2019). In short, the ASA will apply to all marketers the same requirements to prove claims and comply with the Code, irrespective of the sector they come from or how well-intended a campaign is.
The Code applies to all marketing communications in ‘paid for space’ concerning causes and ideas. However, in ‘non-paid for space’ both online and offline, the Code excludes marketing relating to concerns causes or ideas unless it also includes a direct solicitation of donations. See ‘Remit: Cause or idea marketing’ for further guidance.
Making the purpose of ads with distressing elements clear upfront
Fear and distress
The ASA has accepted that a degree of shock can be warranted in order to convey a message and draw attention to distressing or important issues and causes. But marketers should not cause fear or distress without justifiable reason, and if it can be justified, the fear or distress should not be excessive. Shocking claims or images should also not be used merely to attract attention (Rule 4.2).
Whilst marketers may intend to employ a level of shock to challenge societal norms, they must ensure that imagery or content is not so graphic or violent that it is likely to cause undue distress to viewers. The ASA ruled against an ad intended as a parody of yoghurt ads to highlight the hypocrisy of dairy companies for a vegan charity. It featured a woman eating blood and offal from a yogurt with blood dripping from her mouth. The ASA considered the distress in terms of shock and disgust that the graphic and gory imagery was likely to cause, particularly to children, was unjustified. (Viva!, 06 September 2023).
Similarly, a complaint was upheld against an ad for another vegan not-for-profit company, as it was likely to cause distress to all audiences. It depicted animals, including a fish out of water and a cow with tears coming from its eye, in quick succession with fish and meat being chopped and butchered, and also featured a skinned cow’s head. The ASA considered the ad focused on distress and imagery that was so graphic and visceral in nature that it was not suitable for broadcast on TV, and that the inclusion of certain scenes was gratuitous. (Vegan Friendly UK, 08 June 2022).
However, the ASA did not uphold complaints against ads for an Alzheimer’s charity which featured emotive descriptions of the progression of the disease, and the statement “With dementia, you don’t just die once. You die again and again and again.” It considered the ads featured a sensitive and accurate portrayal of living with the disease, and that any distress caused was justified by the overall messaging. (Alzheimer's Society, 5 June 2024).
As with all marketing, compliance with the Code will be assessed according to an ad’s probable impact when taken as a whole and in context. This will depend on the medium in which it appears, the audience, and their likely response. Judicious targeting is key and can help minimise the possibility of an ad being considered inappropriate for its audience. Particular care should be taken if third sector marketers use arresting images or claims in largely untargeted media, such as outdoor or online, without adequate demographic filtering.
Two rulings illustrate the importance of targeting in this respect: in 2022 a TV campaign featured content about suicide including footage of individuals who had gone on to take their own lives (Campaign Against Living Miserably, 5 October 2022), and in 2021 a radio campaign played accounts of people hearing of family members having been murdered through knife crime (Crimestoppers Trust, 7 July 2021). In both cases, the complaints were not upheld because the ASA considered that the potential distress and discomfort caused was warranted, due to the seriousness of the issues at hand. Both ads were also deemed acceptable because appropriate scheduling restrictions had been applied, which reduced the likelihood of children under 16 viewing or listening to them.
See also: ‘Fear and distress’.
Offence
Advertising for the third sector should also contain nothing that is likely to cause serious or widespread offence (Rule 4.1).
The ASA upheld complaints that a poster for a cancer charity featuring the statement “cancer won’t be the last thing that f*cks me” was likely to cause serious and widespread offence. It included a close-up image of a woman’s torso, with one hand holding her breasts and the other hand placed between her legs. The ASA acknowledged the ad was meant to represent the lived experience of women who had, or had survived, cancer. However, they considered the image was sufficiently sexually explicit to be likely to offend viewers. It also considered the word “fuck” was so likely to offend that it should not generally be used or alluded to in advertising. (GIRLvsCANCER, 10 January 2024).
Making the purpose of ads with distressing elements clear upfront
When using hard-hitting approaches in campaigns, third sector marketers should make their cause or purpose clear upfront to viewers, if not doing so may cause distress. They should also ensure ads are immediately identifiable as such.
In 2017 the ASA considered an ad for a gambling charity which featured an inner monologue by a woman in a male voice, which was intended to draw parallels between addiction and sexual seduction. However, the ASA considered the ad reproduced a sexually coercive and abusive scenario, and until a reveal at the end, and in the absence of any context, it was not clear that the purpose of the ad was to raise awareness about gambling addiction. It concluded the distress it would likely cause viewers generally, and particularly to survivors of such abuse, was unjustified. (Responsible Gambling Trust, 07 June 2017).
Additionally, in 2013, the ASA ruled against a circular posted to homes for a cancer charity. It contained messages about cancer likely to be perceived as threatening, such as "It Doesn’t Matter To Me Who YOU ARE" on the front of the envelope. The ASA considered that the ad was not immediately identifiable as such, as the charity was only named on the back of the envelope in a small font. It concluded the ad’s threatening tone was likely to cause serious distress to some people, when posted directly into people’s homes, particularly those who were vulnerable or who had been affected by cancer. (Cancer Research UK, 30 January 2013).
Misleadingness
Marketers must ensure that their claims do not materially mislead consumers or omit material information, and that robust evidence is held to back objective claims capable of substantiation. Various complaints about third sector campaigns have been upheld when evidence provided to the ASA in support of claims made has not been considered sufficient. For example, the ASA considered that claims in two government awareness campaigns relating to reducing pollution and universal credit respectively were likely to mislead (Transport For London, 07 February 2024 and DWP with Associated Newspapers, 06 November 2019).
Marketers outside of the third sector referring to services provided by charities or other non-commercial bodies, such as those offering financial support, must be careful not to misleadingly imply that their ads and services represent or are endorsed by those organisations if this is not the case. In 2021 a debt support website was found to misleadingly imply endorsement or association with both a debt charity and the Government (National Direct Service, 27 January 2021).
The ASA has previously ruled that not making clear precisely where donations and proceeds end up could render an ad misleading. In 2009, it considered an ad for clothing collection bags seeking donations for the "Birth Care Association". The full title of the organisation receiving The Hand of Help's donations was the ‘Kaunas Association of Care About [sic] the Disabled from Childhood’. The ASA concluded that - given the reference to the charity in the ad, and in the absence of information to the contrary - consumers could expect their donations to go to UK-based charities and not one based in Lithuania (The Hand of Help Ltd, 1 July 2009).
In 2016 the ASA also considered claims on clothing collection bags posted to homes by a commercial company, who donated a portion of profits to charity. They concluded the ad gave the misleading impression that consumers were donating directly to the charity. (Recycle Proline Ltd, 30 March 2016). See also ‘Charity Collection Services'.
Additionally, in 2015 the ASA investigated a complaint that a ‘Sponsor a girl’ TV campaign did not make sufficiently clear that donations would not be received by individual sponsored children, as they were put towards local initiatives which benefitted the community as a whole. The ad referred to "sponsoring a girl" but also included references to community initiatives such as “help build safer communities” and “see what a difference you make to her and her friends". The ASA considered the overall impression of the ad was that whilst there would be a personal relationship between an assigned sponsored girl and her donor, donations would fund community-based projects that would indirectly benefit the child as well as others in the local area. Therefore, it concluded the ad was unlikely to mislead. (Plan International UK, 01 July 2015).
Some marketers, particularly those who intend to raise awareness of sensitive issues such as death or abuse, might use models, fictitious testimonials or a combination of typical case studies. Although the CAP Code typically requires that testimonials or endorsements are genuine, the ASA is sometimes more tolerant if the marketer is trying to protect confidentiality, or illustrate their work or the type of people they endeavour to help. The use of any testimonial or case history should be accurate in its material details and truthful in the general impression it creates.
When it comes to subjective claims, marketers may give a view about any matter providing it is clear they are expressing their own opinion rather than stating a fact (Rule 3.6). Assertions or comparisons that go beyond subjective opinions must be supported by evidence in the usual way, and the ASA will expect advertisers to hold evidence in support of their objective claims (Friends of the Earth Ltd, 10 July 2019 and Both Lives Matter, 2 August 2017). See also ‘Matters of opinion’.
Charity-linked promotions
Any promotion claiming to benefit registered charities or good causes should include specific information (Rule 8.33), including stating clearly who will benefit from the promotion and how. It should also state the nature of the beneficiary (if it is not a registered charity), any limits on contributions, and must not exaggerate the benefit to the recipient. This is covered in more detail in 'Sales Promotions: Charity Linked Promotions’.
In 2022, the ASA ruled against ads for a prize draw named “Raffleaid”, as it considered that the name gave the impression that draws were run with the primary purpose of charitable fundraising, when that was not the case. The ads also omitted information about Raffleaid’s charitable contributions and did not specify exactly what would be gained by the charity, the basis on which any contributions were calculated or the total amount that they would receive. (Clarson Ltd, 12 October 2022).
Personal Data
The Code contains specific rules for obtaining, compiling and using personal data for direct marketing purposes. In addition to these rules, marketers should comply with the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003. Marketers wishing to find out more should see ‘Database Practice: General’.
For guidance on the Charities Act and any other relevant legislation, marketers might wish to seek advice from the Charity Commission, the Office of the Scottish Charity Regulator, the Office of the Third Sector, or other relevant bodies.
Furthermore, the Fundraising Regulator holds The Fundraising Code of Practice, and the Chartered Institute of Fundraising also offer guidance and resources on best practice in fundraising.