Advertorials and the ban on misleading and unfair advertising: how should it be done?

An advertorial is advertising that resembles editorial content. This is permitted, but advertising must never be misleading or dishonest: it must be clear to the reader that it is advertising — for example, through the designation “advertorial” or “sponsored” — and the content must be accurate. Both the medium and the advertiser can be held accountable for a misleading advertorial.

Traditional advertisements are working less and less well, and advertisers are looking for more effective forms. Advertorials play an important role in this, but can also lead to legal conflicts. We explain where the line is drawn.

What is an advertorial?

An advertorial is essentially just an advertisement, but it is not as easy to recognize as advertising. It assumes that the reader is looking for valuable information, not advertising. By making the advertisement look like editorial content, the message comes across more effectively. Advertorials appear in newspapers, but also online — often with links to the advertiser's website, which are sometimes also intended to rank higher in Google.

Advertising must not be misleading

It is precisely these characteristics that conflict with the rules: advertising must not be misleading or unfair. An advertorial in which it is not clearly evident from the content, images, or sounds that it is an advertisement is considered misleading. Media usually resolve this by placing “sponsored” or “advertorial” at the top, possibly with a different color or a border.

The Advertising Code Committee (RCC) regularly receives complaints about misleading advertising. In one case (RCC 2020/00304), it concerned an advertorial in c't magazine without a clear heading, but with a reference to the advertiser's website at the bottom, while the article was not listed in the table of contents. The conclusion: the designation “advertorial” does not necessarily have to be used if it is sufficiently clear in other ways—partly taking into account the content—that it concerns advertising.

The advertiser can also be addressed

Not only the medium, but also the advertiser can be reprimanded. In an RCC case (2018/00666), shoe brand Timberland had placed an advertorial in Metro that was properly labeled as “branded content in collaboration with Timberland.” Nevertheless, a reader stumbled over the content: the text stated that with a pair of leather Timberlands, you know for “certain” that no animal suffering preceded their production. The RCC ruled that there is never complete certainty that the slaughter of animals is carried out without animal suffering, and that the word “certain” implied a guarantee that the brand could not fulfill. That was incorrect information, and Timberland was no longer allowed to advertise in that manner.

The lesson: even an advertorial correctly labeled as advertising must not contain misleading or unsubstantiated claims.

Frequently Asked Questions

Should I put “advertorial” above my sponsored article?

Not necessarily that exact term, but it must be clear to the reader that it is advertising. A designation such as “advertorial” or “sponsored” is the safest way to prevent deception.

Who is responsible for a misleading advertorial?

Both the medium placing the advertorial and the advertiser providing the content can be held liable. Both must therefore give careful thought to form and content.

Am I allowed to make strong claims in an advertorial?

Only if you can deliver on them. Absolute guarantees (“certain”, “100%”) that you cannot substantiate are easily considered misleading or incorrect information.

Advice on advertising and advertorials

Whether you run a media outlet or place an advertorial as an advertiser, advertising must not be unfair or misleading, whereas it is precisely subtlety that makes an advertorial effective. The legal experts at MKB Juristen think along with you regarding advertising issues. View our expertise in marketing and advertising law or contact us.