What else? Legal developments, consultations, guidance and more

Keyword advertising tackled by ASA complaint: eSky.pl SA

The ASA has handed down a ruling concerning a paid-for search ad for online travel agency eSky.co.uk, which appeared on the search engine Qwant when users searched for “Ryanair”. The resulting ad  featured the heading “ryanair.esky.co.uk Ryanair – Cheap Flights Book airline tickets with …”.

A complainant (not Ryanair) challenged whether the ad misleadingly implied that the advertiser was Ryanair. According to the ASA, the overall impression created by the prominence of the references to Ryanair in the advert compared to references to eSky meant consumers would understand the ad was for Ryanair and that it would take them to Ryanair's official website. The ASA ruled that the advert was misleading. 

Key factors included:

• The airline's name was repeated as the only bold text in the ad's copy including next to the word "Ad".

• Text stating "esky" was preceded by the more recognisable "Ryanair" brand name.

• The esky logo was of less prominence than the Ryanair logo. 

• The use of the "ryanair" search would mean consumers served the ad would expect the Ryanair website to feature amongst the top-listed search results.

The ruling serves as a good reminder that advertising claims can sometimes be a useful enforcement tool for brands (instead of or as well as claims for trade mark infringement) seeking to tackle key word advertising. Although Ryanair did not complain about this ad, it could have done. 

ASA issues guidance on artificial intelligence and advertising 

The ASA has released guidance on Artificial Intelligence (AI) in advertising. Although there are no changes to the Codes, the ASA has pointed out that an advert will fall within the scope of the Codes irrespective of how the advert is created. Advertisers will need to be careful when using adverts that feature generated AI (original content such as images, text or music created by AI).

The key points advertisers should note are: 

• Where AI-generated images have been used to make claims about a product's effectiveness, there is a risk of misleading consumers if these images do not accurately represent the product's true capabilities eg photoshopped images. 

• Using AI trained on biased data could lead to socially irresponsible advertisements. Advertisers should be mindful of the potential for inherent bias and should review their ads to ensure they don't unintentionally promote harmful stereotypes. The ASA provides the examples of specific generative AI tools portraying idealised body standards, or individuals with lighter skin tones.

• Using automated methods to create or distribute a marketing campaign does not remove the responsibility on advertisers to ensure their adverts are compliant with ASA rules. 

ASA issues guidance on back to school ads

The ASA released guidelines for advertisers to ensure their back to school marketing is ASA compliant. The guidelines state that: 

• Those using promotions or competitions aimed at children must note that adult permission is likely to be required, particularly if there is a cost associated with the prize. Marketing communications aimed at children cannot include a direct exhortation to buy a product or ask someone to buy it for them.

• Regardless of the age of the audience, all significant terms and conditions should be made clear in marketing. 

• Using a ‘Back to School’ theme in age-restricted products is likely to break ASA rules. Using it in a context that sexualises school-age children will undoubtedly be considered offensive and irresponsible.

Government publishes plan to tackle illegal ads, influencer scams and protect children online 

The government published its response to the Online Advertising Programme consultation. The response outlines the steps to be taken to protect consumers and children from deceptive online advertising practices, focusing on fake celebrity endorsements and illegal weapon ads. More on this here.

Google announces new trade mark advertising policy

Advertisements that have been restricted due to trade mark complaints submitted to Google prior to 24 July 2023 will be phased out through 2024, however advertisers can submit an appeal.  Visit the Google Ads Trademarks policy for more information. 

EESC report calls for EU-wide rules on influencer marketing 

The European Economic and Social Committee has released a report: Advertising through influencers and its impact on consumers. The report emphasises the need for cohesive actions in addressing unlawful practices carried out by content creators and influencers within the EU. 

To ensure uniformity, the EESC says that platform administrators should adhere to the following guidelines:

• Assume responsibility for any illicit content disseminated by content creators.

• Take immediate measures to counter and report any unlawful online communications.

• Mandate that all content creators and influencers operating outside the EU establish clear legal accountability within the EU and possess professional indemnity insurance to cover potential harm resulting from unlawful activities. 

The EESC notes that special attention should also be paid to the use of dark patterns, the improper use of trade marks, unauthorised financial products, and identity theft. 

Ofcom outlines approach to implementing restrictions on advertising of less healthy food and drink 

Ofcom issued a statement outlining its approach to implementing newly mandated restrictions on the advertising of less healthy food and beverage products. These statutory restrictions, mandated under the Health and Care Act, pertain to advertising across Ofcom-regulated television, online platforms, and on-demand program services. More here.

CAP and BCAP publish updates to rules on inclusion of under-25s in lottery ads

The CAP and BCAP have updated their rules on lottery advertising featuring individuals under 25 or appearing to be under 25. 

The update aims to clarify the interpretation of the policy changes in 2020, and to clarify existing policies. The rules now make clear that they apply to lottery adverts featuring under-25s as well as those who appear to be under-25. 

CMA concludes investigation on Emma Sleep 

The CMA's investigation into Emma Sleep UK Limited and other entities in the group (concluded on 7 July 2023) found that only a small amount of the products featured on the website were ever sold at their full retail price and the advertised discounts failed to accurately represent genuine savings in comparison to the regular selling prices of these products. 

Since the investigation started in November 2022, the CMA uncovered evidence indicating that the discount claims made by Emma Sleep did not align with the actual savings realised by customers. This discrepancy raised concerns about potential consumer deception. 

The CMA has communicated its concerns to Emma Sleep, suggesting that rectifying these issues involves discontinuing the use of misleading countdown timers and misleading discount offers (to mitigate the risk of legal action).

Emma Sleep has the opportunity to address the CMA's concerns and avert court action by committing to make changes in its sales practices through the signing of undertakings.

CMA consults on revised Prioritisation Principles

The CMA has consulted on proposed updates to the Prioritisation Principles. The purpose of this consultation is to reflect contextual changes (ie the UK's exit from the EU). This CMA proposes the following updates to the Prioritisation Principles:

• Bringing the principles in line with the CMA’s purpose, ambition and strategy as set out in its 2023/2024 Annual Plan.

• Clarifying the relations between the strategic considerations in the Prioritisation Principles and the strategic priorities in the CMA's Annual Plans.

• Streamlining and simplifying text so that it is easier to read.

• Separating out "is the CMA best placed to act" as a principle (before it was encompassed in "Strategic Significance").

• Removing redundant references and updating language to reflect changes since 2014.

• Better reflecting the way principles are used.  

ASA issues Enforcement Notice instructing vaping companies to follow advertising rules 

The CAP has issued an enforcement notice instructing vaping companies to adhere to established advertising regulations. 

The stance taken by the CAP is a response to the heightened concerns surrounding the prevalence of vaping among young individuals and the inadvertent allure posed by vaping-related content on social media platforms, particularly to those individuals below the age of 18. 

ASA publishes 100 Children Report

'The 100 Children Report' released in 2022 investigated the types of age-restricted ads young people were being exposed to. 

The ASA has now followed-up with advertisers, agencies, and social media platforms with a report released on 19 July 2023 '100 Children Report - enforcement and engagement report' to address concerns about children's exposure to age-restricted ads. 

The report commends advertisers and agencies for aligning with guidelines to limit children's exposure, invites reflection on the ASA's approach to monitoring online ads and explains why they won't name advertisers in violation of the UK Advertising Code at this time. 

CMA submits evidence to Digital Markets, Competition and Consumers Bill Committee

The CMA has submitted written evidence to the Public Bill Committee for the DMCC with respect to the DMCC Bill. The submission outlines that the legislation is needed to support innovation, investment and growth in digital markets, protect consumers from unfair practice and support competitive markets.

The evidence noted that the important elements of the Bill are to:

• Ensure an appropriate appeal mechanism for digital markets. 

• Ensure a flexible and future proof approach to regulating digital markets. 

• Ensure measures to combat unfair practices to protect consumers.

The CMA notes how it is preparing for its new responsibilities within the Bill ie:

• Building a new Data, Technology and Analytics (DaTA) unit. 

• Appointing a group of new external "Digital Experts"

For more information on the Bill, see our overview. 

ASA publishes guidance on products containing CBD 

The ASA has published guidance on advertising products containing CBD. The ASA advises that advertisers should: 

• Ensure oral products such as drops and gummies have been authorised by the Food Standards Agency.  

• Only make health claims about oral CBD products that have been authorised by the GB NHC Register for CBD. Claims to treat or cure human diseases are prohibited. 

• Not present CBD as a medicine unless it is appropriately licenced as such. 

• Ensure that non-medical claims for topical products are supported by evidence, most likely in the form of clinical trials on people.