Advergames are online video games that are created in order to promote a brand, product or organization by immersing a marketing message within the game. They are typically accessed via an organization's website or app, or via a social media platform. Advergames are not particularly new. The concept of advertising via gaming has been around since the 1980s and the term advergame was included in Wired magazine's Jargon Watch column back in 2001. In the early days of the advergame, though, the medium was generally embraced by brands that targeted the youth market. These days, the growth of tablets, smartphones and mobile apps, as well as the rise in popularity of online gaming, has led to the increased adoption of advergames by a wide variety of organizations, including charities, financial services firms, car manufacturers, toy makers and government agencies.
Given the increased challenges of traditional advertising, advergames are considered a great way to help increase brand awareness and engagement—whether an organization is promoting a new product, educating, trying to grow its market, carrying out market research, or reaching out to prospective recruits. A key benefit of advergames is that users interact with a brand for far longer than they would with traditional forms of advertising. The best advergames can go viral and provide worldwide exposure and a shelf-life much longer than that of a traditional advert. For example, in 2013 Chipotle, the Mexican fast food chain, published a Scarecrow advergame that was downloaded 250,000 times within four days of its release.
In this post, we will consider some of the legal issues that organizations operating in the UK will need to consider when employing advergames as a marketing tool.
The first issue that an organization will need to consider is compliance with applicable advertising rules, as advergames are very likely to be regarded as advertising. That's certainly the case in the UK.
In May 2012, the Advertising Standards Agency (ASA), the UK's independent regulator of advertising, published guidance on the use of advergames. In the guidance, the ASA made clear that advergames in paid-for space online are covered by the relevant rules of the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code). In addition, advergames that are made available on an organization's website or app or via a social media platform under the organization's control, and that are directly connected with the supply or transfer of goods, services, opportunities or gifts, must comply with the CAP Code.
Particular issues arise when advergames are considered appealing to children. The CAP Code includes an overarching principle that marketers must be careful when addressing children in marketing, and must bear in mind that children's understanding of, and reaction to, marketing communications will be affected by their age and experience, and the context in which the message is delivered. The CAP Code also requires that advertisements be obviously identifiable as such. When deciding whether an advergame complies with this rule, the ASA will consider the context in which the advergame is made available; any references to the product, brand or organisation in or around the game; and the target audience.
To date, many of the complaints made to ASA about advergames concern their use by food manufacturers to promote foods perceived to be unhealthy. Under Rule 15.11 of the CAP Code, advertisements must not condone or encourage poor nutritional habits or an unhealthy lifestyle in children. In addition, Rule 15.15 states that, in general, food advertisements that are targeted directly at pre-school or primary school children must not include licensed characters or celebrities popular with children.
By way of example, in 2012, the ASA considered a Krave cereal advergame made available to Facebook users who had, via their Facebook profile information, confirmed themselves to be aged 16 or over. The advergame featured a character, the Krave Krusader, which players controlled in order to collect chocolate and score points. The complainant considered that the advergame encouraged poor nutritional habits and an unhealthy lifestyle in children in breach of the CAP Code. However, the ASA rejected the complaint, precisely because the advergame was targeted at Facebook users over the age of 16.
In the same year, the ASA considered advergames published on the website of a confectionary manufacturer, www.swizzels-matlow.com. It held that a "Cola Capers" game that was (i) relatively long in duration, (ii) aimed at young children, and (iii) condoned eating a large number of sweets while hiding such consumption from the user's parents irresponsibly encouraged poor nutritional habits and an unhealthy lifestyle in children. In addition, it held that certain games involving the character Scooby Doo were aimed at primary-school children and therefore in breach of the CAP Code.
It only takes one complaint for the ASA to investigate an advergame, and if the ASA upholds the complaint, the offending advertisement is very likely to be banned. As the ASA is a non-statutory body it does not have the power to fine advertisers or take advertisers to court.
However, some parties want more action. In March 2014, the UK's Local Government Association (LGA), which represents almost 400 councils in England and Wales, called for pop-up health warnings to accompany "addictive" advergames used by food firms "targeted at children." The ASA responded to this call by making reference to its recent bans and stating that it would not hesitate to ban any other advergames that breached the CAP Code. However, in May 2014, the University of Bath's Institute for Policy Research issued a policy brief, Advergames: It's not child's play, looking at the use by food firms of advergames to promote high-salt, high-sugar and high-fat food and drink products. The brief concluded that children up to the age of 15 do not recognize that advergames are advertising, and called for various actions, including an obligatory, clear, uniform labelling system for all children's advergames. So, as you can see, this issue is not going away.
It's not just a question of advertising rules. Some of the other key issues advertisers will need to consider when launching an advergame include:
- Privacy and data protection laws
- Consumer protection rules
- Industry regulations affecting advertisements and promotions
- App store rules and restrictions
- Prize promotion rules
- Intellectual property rights in the advergame
- Ownership of data
- Contracts with third-party providers (e.g., the game developer)
Advergames are a fun, interactive marketing tool. However, it's important to comply with all applicable rules to make sure that your advergame doesn't give you publicity for all of the wrong reasons.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
© Morrison & Foerster LLP. All rights reserved