An audio-advertisement by Huel Ltd (the company behind the Huel “meal replacement products”) which featured on an episode of Steven Bartlett’s ‘The Diary of a CEO’ podcast back in March 2022 clearly left a bad taste in the mouths of the ASA, after the regulator upheld a complaint against the ad this week.

The ad was featured around 31 minutes into the podcast (which was over an hour and a half long in total) and began with the sound of a page being turned. Bartlett, the host of the podcast, opened with “quick one” and then started discussing a new flavour of Huel. The ad concluded with the words “back to the podcast” before the sound of a page being turned was played again. Huel was also referenced in the description of the podcast which stated “Sponsor: Huel” and included a link to the Huel website.

The complaint to the ASA challenged whether the ad in this form was obviously identifiable as a marketing communication.

In response to the challenge, Huel explained that they took their obligations under the CAP Code very seriously whilst arguing that:

  • they did not believe the podcast incorporated an ad due to the fact they had no editorial control over the podcast’s content;
  • although the arrangement with Bartlett was a financial one, its terms were not prescriptive and references to Huel were decided by the Bartlett’s podcast team (the “Podcast Team”);
  • Huel’s relationship with Bartlett was not an affiliate relationship, as Bartlett did not receive direct benefits from Huel for products purchased via the link in the podcast’s description;
  • that the combination of an audible page being turned, the introductory words “quick one”, the concluding words “back to the podcast”, and the clear change in the tone of the segment clearly signposted the ‘endorsement’; and
  • the creative style used by Bartlett was consistent in all the episodes of the podcast, meaning listeners would understand the above markers as the beginning and ending of an ad (so no explicit reference was required).

Bartlett also provided a response himself, which effectively concurred and reiterated the points made by Huel, including that Bartlett felt that when the ad was recorded it was compliant due to the change in tone, as well as including sound effects and words which marked the start/end of the advertising content. In an effort to resolve the issue, the Podcast Team also explained that they had changed the beginning of the segment to say “Quick one. As you know Huel sponsor this podcast”. They felt this enabled listeners to immediately know that this segment was an ad from the sponsor. Additionally, the podcast moved the fact Huel sponsored the podcast to the top of the podcast’s description.

The CAP Code provides that marketing communications must be obviously identifiable as such and they must make clear their commercial intent (where this is not obvious from the context). As such, the first issue for the ASA was whether or not the podcast amounted to a marketing communication. The ASA did note Bartlett’s efforts to attempt to distinguish the advertising material from the remainder of the podcast, and acknowledged that Huel sponsor the podcast, have no editorial control, and the link was not an affiliate link. The ASA did not review the relevant contract between Huel and Bartlett but recognised that Bartlett was a non-executive director at Huel, meaning that in any event the relationship between him and Huel was a commercial one. Given the podcast’s content promoted Huel’s products and was directly connected to the supply of goods via the link included in the description, the ASA found the podcast was a marketing communication. Based on this finding, they did not need to further consider the extent of Huel’s editorial control.

The ASA noted that it should be obvious that an advertising feature was an ad and this information needs to be delivered in a timely fashion. In this instance, the start of the segment did not have any upfront wording which made it obviously identifiable as an ad. They also added that the page turning sound effect either side of the section was both brief and quiet, so it could be missed or overlooked. Even if noticed by some keen-listeners, the ASA considered that it was not immediately obvious that the sound effect indicated a change of the content or a transition for the ad. The ASA considered that Bartlett voicing the ad in a similar style and tone to the main editorial material meant the two did not significantly differ and concluded that the commercial intent of the ad was not clear upfront, and was not obviously identifiable as a marketing communication.

The ad was therefore deemed to breach rules 2.1, 2.3, and 2.4 (recognition of marketing communications) of the CAP Code.

The ruling clearly re-iterates that, irrespective of the format of an ad, the ASA will not look kindly on subtle or light-touch approaches (often used by content creators) when it comes to making followers/listeners aware of ads or official endorsement relationships. This must be unequivocally obvious to the audience. The ASA instructed Huel and Bartlett to ensure they made the commercial intent of advertising content in podcasts abundantly clear in future, suggesting a clear and prominent identifier such as “advertisement”, and by ensuring the break from the editorial material to an ad was clear and audibly identified. As such, to comply with the CAP Code, the ‘safe’ approach would undeniably be to use unambiguous and explicit statements indicating a commercial relationship and ads.