Misleading advertising (especially in relation to green claims) and prevention of harm, particularly to children and the vulnerable, continued to be in the spotlight in 2021.
Advertising
HFSS rules
In June and July, the government published plans to restrict advertising of high fat, salt or sugar (HFSS) products. The new rules will come into force by the end of 2022 and will apply to businesses selling pre-packaged HFSS (in-store or online) with more than 50 employees, subject to exemptions.
Proposals are that businesses in scope must not:
- offer volume price promotions (eg multi-buy or buy-one-get-one-free) and must not give free re-fills of non-pre-packaged HFSS drinks
- put HFSS in certain 'high footfall' locations eg close to checkout or in queuing areas.
Advertising certain types of unhealthy foods online (where adverts are paid for) and before 9pm on TV will also be prohibited. Civil penalties will be introduced for non-compliance with a local authority enforcement notice.
We should see draft legislation early next year which will provide further detail.
Misleading advertising
In April, an investigation by the CMA found that there is still evidence of misleading and fake reviews on Facebook and Instagram despite Facebook having removed 16,000 groups since committing to action in January 2020. As a result, it has now agreed to:
- suspend or ban users who repeatedly create Facebook groups and Instagram profiles which promote, encourage or facilitate fake and misleading reviews
- introduce new automated processes to improve detection of fake and misleading content
- make it harder for people to use Facebook's search tools to find such review groups and profiles
- implement dedicated processes to make sure the changes work effectively.
The CMA will continue to monitor Facebook's actions in this area.
Video sharing platforms
Ofcom published for consultation its approach on regulating advertising on video sharing platforms (VSPs) in May. The statutory framework, introduced in November 2020, distinguishes between advertising that is marketed, sold or arranged by the VSP provider, and advertising that is embedded within shared content uploaded onto the VSP. In other words, advertising within the control of the VSP, and advertising outside the VSP's control.
Racial and ethnic stereotyping in advertising
The ASA launched a call for evidence on racial and ethnic stereotyping in advertising. Once it has assessed the evidence, it will report on whether it is effectively tackling ethnic stereotyping in ads and whether and what changes are needed.
CAP and BCAP consultation on new rules on harm and protected characteristics
CAP and BCAP consulted on the introduction on new rules on harm and protected characteristics. Proposals are to introduce new rules to ensure marketing communications and adverts do not contain anything likely to cause harm. Marketers and broadcasters will have to pay particular regard to the likelihood of causing harm to vulnerable people and to those sharing protected characteristics as defined in the Equality Act 2010. These include age, disability, gender reassignment, marriage and civil partnership status, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
CMA and ASA action on making 'green' claims
The ASA published the conclusions of its review of regulation of green ad claims, resulting in three action points:
- CAP guidance – CAP will publish guidance on the key principles advertisers need to follow to ensure their ads don't mislead about the environment and are socially responsible when considering environmental issues. The guidance will complement the guidance on misleading environmental claims issued by the CMA (see below).
- Enquiries into specific issues – the ASA will carry out a series of inquiries on specific issues focusing on priority areas identified by the Climate Change Committee to facilitate carbon reduction. These include aviation, cars, waste, animal-based foods and heating. Energy, heating and transport issues will be considered first, followed by waste and then food sustainability.
The ASA is not currently looking to introduce new rules but recognises that this is an evolving issue.
Meanwhile we reported in June on the CMA's Green Claims Code and guidance to help businesses when making environmental claims and prevent 'greenwashing'. It contains six key principles:
- be truthful and accurate
- be clear and unambiguous
- not omit or hide important information
- only make fair and meaningful comparisons
- consider the full lifecycle of the product
- be substantiated.
Age-restricted ads
In September, we discussed the impact of the ASA's monitoring and enforcement report on age-restricted ads. This assessed the distribution of ads for alcohol, gaming and HFSS products on websites and YouTube channels where adults comprise over 75% of the audience. It calls on marketers to make better use of audience and media targeting tools to minimise children's exposure to age-restricted ads. You can find out more here.
CAP and BCAP ban advertising cosmetic interventions to children
CAP and BCAP amended their respective codes to ban marketing communications directed at under-18s which advertise cosmetic interventions, and adverts for them in or adjacent to programmes targeted or likely to appeal to under-18s.
The new rules will apply from 25 May 2022, to "cosmetic interventions" which are defined as "any intervention, procedure or treatment carried out with the primary objective of changing an aspect of a consumer's physical appearance. This includes surgical and non-surgical interventions, both invasive and non-invasive". It does not include cosmetic products as defined in the EU Cosmetic Products Regulation.
ASA statement on advertising cryptoassets
The ASA published a statement on advertising cryptoassets, in particular cryptocurrencies and NFTs. It is already investigating ads which cause concerns around lack of appropriate risk warnings, trivialising investments, taking advantage of consumers' inexperience, and irresponsible advertising. A further statement is scheduled for mid-December.
Influencers
DCMS Committee inquiry into power of influencers
The DCMS Committee launched an inquiry into the power of online influencers. It focuses on hidden advertising and the frequent lack of transparency around promotion of products and services. This follows on from an ASA report which revealed a low level of compliance with disclosure requirements. The Committee will consider whether regulation is necessary and, if so, what form it should take.
ASA action
The DCMS inquiry followed an ASA report of the results of a three week exercise monitoring 122 influencers and over 24,000 Instagram stories. As we discussed in April, it found nearly one in four stories were advertising but only 35% were clearly labelled and obviously identifiable as such.
The ASA launched a new web page in June to publicly name social media influencers who repeatedly break the rules on identifying advertising. They will remain on the web page for three months. If they continue to break the rules the ASA will take further action including taking ads out against them, working with social media platforms to have their content removed and referring them to statutory bodies for possible fines. The ASA is also looking to take action against brands that repeatedly fail to disclose ads or do not provide assurances that they will properly label them in future.
In October, the ASA published a resource page to help brands and influencers stick to advertising rules when they are running a giveaway, prize draw, competition or other prize promotion on social media. The ASA reminded influencers that they need to avoid participants being misled or left disappointed. It reiterated that it will pursue anyone running a draw which is unfair, missing important conditions, or where no prize is awarded. The resource page includes a checklist, advice articles and e-learning advice.
