UK advertising and marketing during the COVID-19 pandemic

The rules on advertising and marketing haven't changed as a result of the COVID-19 pandemic, but context is everything. The UK regulators have been quick to highlight areas of concern and scrutiny as the special circumstances bring aspects of the rules into sharper relief, and advertisers need to think carefully about copy clearance at a time of new sensitivities.

Since the start of lockdown, the UK's Advertising Standards Authority (ASA) and the Competition and Markets Authority (CMA) have published a series of guidelines, blogs and rulings, setting out their revised priorities and policies during this period, together with reporting tools to help consumers make complaints about coronavirus-related ads and unfair commercial practices. To a large extent, the regulators are reminding businesses about key compliance points of existing rules, in particular, the CAP and BCAP Codes, and so the guidance will have life beyond the current crisis.

The pandemic is also highlighting the issue of how to manage online misinformation and disinformation. While this is a much-discussed problem, the lack of an effective solution has resulted in an inconsistent approach as individual social media companies respond in different ways.

This means brands need to consider copy clearance and existing campaigns in the particular context of the pandemic.

ASA

While the rules on advertising have not changed as a result of COVID-19, the ASA has announced changes to its regulatory approach during the pandemic. It has said it will apply a "lightness of touch" in some areas, knowing when to prefer an advisory rather than an investigatory approach. There will, however, be "an uncompromising stance on companies or individuals seeking to use advertising to exploit the circumstances for their own gain", including where adverts seek to exploit people's health-related anxieties or difficult financial or employment circumstances.  

The ASA is working with other consumer protection and enforcement bodies to raise awareness and protect people from coronavirus scams and is focusing on areas which are particularly open to abuse during lockdown, for example, gambling and health products.

In our recent interactions with the ASA, we have seen business continuing as usual, albeit with potential for some loosening of the otherwise tight response deadlines. We have certainly not seen a reduction in attention given to complaints the ASA receives and passes on to advertisers.

Gambling advertising

The ASA has issued advice on gambling advertising during lockdown and warned the industry that its behaviour is "under particular scrutiny during this period of national emergency". It is encouraging people to report gambling ads that:

• Refer to the COVID-19 crisis or related issues like the lockdown policy.
• Include claims or themes that are of particular concern in the current climate (for example, ads that refer to alleviating boredom).

The ASA has also published a reminder on rules around gambling ads as part of its coronavirus response. It reminds businesses that gambling ads must be socially responsible and not portray, condone or encourage gambling behaviour that could lead to financial, social or emotional harm. Gambling ads must not:

• Suggest gambling can provide an escape from personal or professional problems.
• Suggest gambling is a solution to financial concerns.
• Pressure people to gamble – an ad asking "Are you a spectator or are you a player? Get in on the action", for example, was found to have pressured people into gambling by disparaging non-participants.

The ASA says that gambling ads should not exploit cultural beliefs or traditions about luck, suggest gambling is a rite of passage, that solitary gambling is preferable to social gambling, or condone criminal or anti-social behaviour. These are in addition to other social responsibility requirements.

It will work closely with the Gambling Commission to identify issues and enforce compliance. The Gambling Commission has separately written to gambling operators reminding them to act responsibly during the crisis, in particular with regard to consumer protection, marketing and compliance with licence conditions and codes of practice. It reminds operators that people may be particularly vulnerable at this time and that companies are expected to step in if customers are showing signs of experiencing or being at risk of harm. The Gambling Commission has also issued new consumer protection guidelines for online gambling companies and says it will step in immediately if it sees irresponsible behaviour by companies.

Promotions during COVID-19

One of the many cultural impacts of Covid-19 is on the now cancelled summer of sport 2020. Alongside enormous disappointment for athletes and spectators, this has also had a huge impact on sponsors and advertisers, many of whom may already have launched related promotions and competitions. Problems with supply chains (for promotional items and prizes), as well as cancelled events themselves, have prompted the ASA to publish a notice on dealing with unexpected events when running promotions.

The ASA draws promoters' attention to section 8 of the CAP Code which covers the possibility of events which are unexpected and beyond the promoter's control. It recognises the COVID-19 outbreak as an "exceptional circumstance" and the kind of event which might require promoters to rethink aspects of promotions. If they do, they must ensure that changes comply with the CAP Code. In particular, promoters must be able to demonstrate why the exceptional event meant they had to change their terms and conditions, and consumers must be dealt with fairly, transparently and honourably. There is no sense from the notice that the usual strictness of the rules will be softened in the current environment.

Where the availability of promotional items has been affected, promoters must be able to show they had made a reasonable estimate of demand. If they are then unable to meet it due to an unexpectedly high response or to factors beyond the promoter's control, they must communicate in a timely fashion with consumers and offer a refund or reasonable substitute in the case of likely detriment to the consumer. Merely stating that items are "subject to availability" will not relieve the promoters of their obligations to avoid disappointing participants due to availability issues.

Changing the closing date of a competition is not normally allowed but may be unavoidable. The promoter must be able to demonstrate why it is necessary to change the date and may only do so if either not changing the date would be unfair to those who sought to participate on the original terms, or those who sought to participate on the original terms will not be disadvantaged by the change.

The current situation may make it impossible for promoters to award the prizes described or their equivalents within the usually mandated 30 days. This does not, however, mean they can cancel a promotion without awarding any prize at all. The prize or a suitable equivalent must still be awarded as soon as possible and promoters must communicate with consumers and treat them fairly.

Subscription services and free trials

Subscription platforms like Netflix have reported an increase in new subscriptions during lockdown and Disney+ has thrived since its release in the UK in March. As many subscription services offer a free trial period, the ASA has published top tips on advertising free trials responsibly.

These do not include new information but remind businesses of the information which needs to be clearly provided to consumers, including whether the subscription will continue automatically after the trial, how to cancel, and the extent of the commitment if the subscription is not cancelled at the end of the trial period. In order to use the term "free trial", whatever is being offered must be genuinely 'free' to the consumer. Businesses can charge for delivery provided that it is the genuine, uninflated cost of postage, but they cannot charge for other costs such as packaging or handling if they want to claim that something is free.

Advertising coronavirus-related products

The ASA has been very clear that it will take an extremely dim view of anyone seeking to capitalise on the pandemic to sell products or services.

In early March 2020, the ASA upheld a complaint against Novads OU whose adverts linked their facemasks to the WHO's declaration of a global health emergency and claimed that one of its masks was "one of the best ways to protect yourself from virus, bateria (sic) and other air pollutants".

The ASA also ruled that an advert for Vick Smiths Beds which combined the Union Jack, a surgical mask and text stating "British Build (sic) Beds proudly made in the UK. No nasty imports" was likely to be read as associating immigration or race with coronavirus. Despite the advertiser (and the newspaper in which the ad appeared) saying they would not repeat the ad, the ASA did not resolve the complaint informally, demonstrating its tough stance on anything spuriously or offensively relating to COVID-19.

After further complaints about adverts for face masks, the ASA issued guidance on advertising responsibly, covering medicines and medical devices, alternative and complementary therapies and food or food supplements, saying:

"Think very carefully before you make any direct or implied claims about coronavirus or COVID-19 in your advertising – all ads must be prepared with a sense of responsibility to consumers and to society and the ASA is unlikely to have any patience for marketers seeking to unfairly exploit the outbreak to sell products or services or otherwise make claims that would be considered socially irresponsible."

Chuckling Goat is another example of a company found to have breached the CAP Code in this way. Their advert stated "What's your best defence against any virus? Boost your immune system" and referred to "Live Gut Health Advice". A web link to further advice was given but that linked to an instant messaging service for the company rather than to further advice. The ASA upheld the complaint against the company, saying those unfamiliar with the brand would understand it was offering advice linked to gut health to prevent viruses. The company was found to be implying that their food products prevented, treated or cured human disease in breach of the CAP Code. The advert also breached the CAP Code's rules on food supplements and associated health or nutrition claims.

Recently, the ASA has focused on IV drips and, together with the Medicines and Healthcare products Regulatory Agency (MHRA), has published a new Enforcement Notice on Advertising IV Drips (coronavirus/COVID-19). This follows three rulings establishing that advertising IV drips by stating or implying they could help prevent or treat COVID-19 on websites and social media, breaches the CAP Code. Advertisers must not claim directly or indirectly that IV drips can prevent or treat coronavirus/COVID-19.

The ASA takes a broad approach to indirect claims which include claiming to treat or prevent any viral infections, claims that the IV drip supports government or WHO advice, referencing the pandemic, or making claims the drip boosts the immune system.

CMA

In March 2020, The CMA launched a taskforce to tackle negative impacts within its remit of the COVID-19 outbreak. For example, it will actively monitor market developments to identify harmful sales and pricing practices as quickly as possible and take enforcement action where there is evidence that firms may have breached competition or consumer protection law.

On 4 April 2020, the CMA also launched an online service through which businesses and consumers can report COVID-19 related unfair practices. Individuals can submit various details, including reporting on unfair prices for products or services, misleading claims and problems with the cancellation, refund or exchange of products or services.

The CMA has written an open letter to businesses in the pharmaceutical and food industries about unfair pricing practices, and has also published guidance on cancellations and refunds which cover how businesses should communicate with consumers (see here for more).

Online disinformation

The tech giants have been responding to the challenge of combating online disinformation including adverts. Twitter, Facebook, Instagram, YouTube, TikTok, Google and WhatsApp are among those who have taken steps. For example, Twitter has introduced a pop-up directing users to credible national medical sites and is removing inappropriate and opportunistic advertisements relating to the virus. It has gradually refined its policy to allow managed clients and partners to advertise content referring directly or indirectly to COVID-19, subject to certain restrictions.

Facebook is also taking steps to direct people searching for information on the virus to credible sites, to take down content "debunked" by credible experts, and has banned advertisements for products which claim to prevent or cure COVID-19. WhatsApp has introduced measures to prevent mass forwarding, and YouTube has also restricted COVID-19 ads on videos to certain creators and partner channels.

The position of the various content and social media platform is continually developing so it's essential to check guidelines as to what might trigger alerts leading to removal of an advert. With the workforce impacted, AI is doing more moderation than usual and it may be harder to get a quick response to an appeal if an advert is taken down without justification.

Influencers

With social media usage up since the start of the pandemic and people consuming more content, advertisers may consider allocating a greater proportion of their ad spend on collaborating with influencers. Influencers are able to adapt quickly to changes in circumstances and can engage directly with their captive audience. With many people forced to isolate at home, influencer posts showing content recorded in their home environments might be perceived as more authentic and real.

However, it's important to remember that the same legal, regulatory and reputational risks apply for brands using influencers. In particular, the regulators are still likely to consider brands as having joint responsibility for influencer ads, even where they have no direct input or control. If you use influencers, it's important to make sure they abide by the usual rules but also that they are aware of additional COVID-19 considerations. Instagram is blocking or restricting hashtags that spread misinformation about the virus and will take down content and recommendations about it which are not posted by a credible health organisation.

Consider existing and new campaigns

For most businesses, the focus on not taking advantage of the current crisis in advertising requires a more nuanced approach than simply avoiding making health-related claims about products. Bad decisions could trigger a corporate reputation crisis and ultimately damage the business. Getting the timing right is important. For example, Just Eat announced that it delayed the launch of its Snoop Dogg advertising campaign by five weeks because of concerns that it was too light-hearted at the start of the virus outbreak. It has recently launched the campaign, explaining that it now felt that "the time is right for some light-heartedness".

Some existing adverts may trigger complaints because they are no longer appropriate at this time – for example, ads which depict people hugging each other, sharing food with their hands or taking part in mass gatherings. Businesses should ensure that they re-examine their existing ad campaigns, even if they are not considering launching new ones. KFC recently paused its "Finger Lickin' Good" campaign, following concerns that it conflicted with the global advice by health organisations relating to the importance of hand-washing to combat the spread of coronavirus. The ASA received over 100 complaints about the campaign before it was withdrawn. KFC has since pivoted to a more timely "KFC is Back!" campaign, promoting the re-opening of some stores using UGC images of DIY attempts to recreate KFC at home. In the US, Coors Light announced that it was stopping an upcoming campaign which advertised the beer as the "Official Beer of Working Remotely", amid fears it would look like it was taking advantage of people working from home.

A difficult position for advertisers?

Mentioning the pandemic in adverts is allowed provided it is not done in an exploitative or inaccurate way – supermarkets have been quick to produce ads which reference the new safety rules for shopping and are careful not to imply any need to stockpile particular items. There has, however, been some media criticism of certain businesses inappropriately 'coronawashing' – seeking to ally themselves with the national effort or frontline workers without any particular connection to them – so taking this route can prove counterproductive for some. Businesses advertising their links to charitable efforts around COVID-19 or seeking to raise money, also need to be careful to comply with rules on charitable marketing, and specific charity law requirements, and not to overstate the extent of their contribution.

Advertising always requires sensitivity to the unintended impact as well as to the key message it is trying to convey. Now we have a new set of circumstances to consider and factor in.