Identifying advertising in podcasts

Podcast advertising represents a significant marketing channel for advertisers at a time when traditional marketing mediums are becoming less effective.

Advertising in podcasts is attractive because it offers advertisers an opportunity to tap into a growing audience. It is also a highly effective way for brands to engage with their audience because podcast listeners tend to be engaged with the topic and will listen attentively.

There are no advertising requirements specific to podcasts, but context is important and advertisers must be aware of how to apply the rules in this space.

Which rules apply?

Ads in podcasts are covered by the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code), administered by the Advertising Standards Authority (ASA). As such, they will be subject to the same principles that apply to advertising on social media and other online advertising mediums including Video on Demand and music streaming.

An important requirement under the CAP Code is for all ads to be obviously identifiable as marketing communications and particularly to differentiate clearly between editorial and advertising content when advertising is delivered in native format. Podcasts are primarily an audio format, so advertisers need to pay particular attention to ensure that their advertising in this space is obviously identifiable.

Ads in podcasts

It's important to have a clear understanding of what counts as an ad for it to fall within the remit of the ASA. Very simply, if someone pays the podcast publisher to promote their products or services and also has editorial control over the content of the ad, this is likely to count as an ad and the CAP Code will apply.

Podcast ads may resemble part of the editorial content, perhaps by being read out by the podcast presenter. They can also be in the form of a more traditional pre-produced ad and appear in the episode as 'paid-for space'. Advertising rules also apply to affiliate marketing, as well as to where the podcast advertises its own products or services.

In terms of ad placements, there are typically three types:

pre-roll (at the beginning)
mid-roll (in the middle, often as an intermission)
post-roll (after the episode is complete).

Alternatively, the entire podcast could be an ad about a product or service.

When is a podcast ad obviously identifiable?

A podcast is primarily an audio format and advertising content can be difficult to distinguish from independent editorial content because it can sound very similar. What makes it even harder is that podcasters often place the ads in different parts of the episode.

In some contexts, it will be obvious when an ad appears in a podcast. This is more likely when the ad is presented in its more traditional form as a pre-produced ad that appears in 'paid-for space'. Obvious differences in sound effects, tone and subject matter are all likely to be factors that help distinguish the ad from editorial content, though it's not enough for consumers to just recognise that a segment of the podcast is different; they must know that they're listening to an ad.

Where the ad resembles the editorial part of the podcast (ie it is engrained so closely into the content that the listener cannot tell that it is a commercial message), then it may not be obvious that the content is an ad. This is more likely where the ad is read out by the presenter.

The same principles apply here as with other types of native advertising (such as influencer advertising). Where it is not obvious that a segment of the podcast (or, indeed, the whole podcast) is an ad, ASA guidance says that the most reliable way of ensuring that it is obvious is to include an explicit disclosure at the beginning of the podcast. The idea being that consumers shouldn't find out in retrospect that they're listening to an ad. It should be clear from the outset and appear early in the podcast, not halfway through or at the end.

If most of the podcast content is genuinely editorial in nature and includes material that counts as advertising, then the advertising needs to be clearly distinguished from the editorial material. This applies to commercial breaks and references to affiliate products. Consumers must easily be able to tell when the ad segment begins and ends.

If the entirety of the content counts as advertising then it's likely that the title of the podcast will need, at a minimum, to include an identifier such as "Ad" so that it is clear to consumers before they click on the podcast. This label needs to be seen before someone starts engaging with the content. Advertisers must be conscious of the way content is displayed on different devices.

Analogies can be made with the well-known ASA ruling against Mondelez, where the ASA called out YouTube videos from vloggers because their commercial content was not clear prior to consumer engagement. They used phrases such as "Thanks to Orea for making this video possible" both verbally and in the video description but consumers would only see these after they'd already started watching the video and the presentation of the ad was very much in keeping with the normal editorial style of the vloggers.

More recently the ASA ruled that two videos on the 'Global Cycling Network' channel breached the CAP Code because they didn't make sufficiently clear that they were paid ads. Both videos included the statement "Thanks to Wahoo Fitness for the products used in this video" in the description box underneath the video and a reference to them as "sponsors". The ASA held that those statements were insufficient to make clear that the videos were ads. The same principles apply to podcasts.

Who is responsible for complying with the rules?

The advertisers and the podcast will be responsible and named in any ASA investigation. Depending on the extent of their involvement, the podcast platform may also be held to be jointly responsible. At the least, the ASA might reach out to the platform for comment. We have seen recent examples of the ASA getting in touch with platforms following consumer complaints in circumstances which arguably overstretch its remit.

Sponsorship (not advertising)

Where there is no editorial control over references to a sponsor, this content is unlikely to count as advertising or fall within the ASA's remit. For example, a brand may be the title sponsor of a podcast. If this is the limit of its sponsorship and it has no editorial control over any references to it or its products or services in the podcast, then this won't be considered advertising by the ASA and it won't be subject to the CAP Code. It will remain important, nevertheless, to separate sponsorship messages from the editorial content of the podcast so listeners are aware they're listening to a paid-for message rather than content from the creator.

Be clear and transparent

Perhaps the overall message can be summed up as the need to be clear and transparent about advertising and marketing in podcasts. There should be no room for confusion.