4 December 2020
2020 has been a tough year for the advertising industry. Ad spends have been slashed, headcounts cut, and advertisers have had to revaluate their thinking about current and future advertising.
Given the events of this year, it might seem impossible (foolhardy even!) to predict what might be coming in 2021 and what issues will emerge from the COVID-19 pandemic. However, we think there are some clear trends coming out of this year and a variety of things to look forward to in 2021.
Unsurprisingly, 2020 saw many ads for products or services which referred directly or indirectly to COVID-19. The ads varied from those claiming to provide protection from the virus or immunity to it, to those claiming to provide treatment for the symptoms.
As advertisers pushed the limits of pandemic advertising, the ASA showed surprising agility to change the way it worked and re-prioritise its focus on ads which prayed on or exploited people's health anxieties, while applying a lightness of touch in other areas. The rules didn't change but the special circumstances brought aspects of those rules into sharper relief.
We expect COVID-19 will continue to dominate the advertising landscape in 2021. What happens will depend on how the pandemic develops. With possible vaccines now being reported on a regular basis, the ASA is unlikely to change the approach it adopted this year and will continue to take quick action against any ads which seek to take advantage of any positivity created by vaccine announcements by misleading consumers or exploiting their fears. In its most recent guidance note, the ASA reiterates its previous advice that any claims to prevent, treat or alleviate the symptoms of COVID-19 must not be made without being licensed by the MHRA.
Going into 2021, advertisers must continue to be aware of the relevant government and scientific rules and guidelines on COVID-19 and how these might affect their ads. In September 2020, the ASA issued a statement on its likely approach where concerns are raised about ads which do not depict such rules and guidelines. It emphasised a pragmatic approach, based on three guiding principles:
Among the biggest announcements in 2020 was the government's plan to ban TV and online ads for products with high fat, salt and sugar (HFSS). This was first touted in March 2019 and has been brought back on the agenda after obesity was found to increase the risk of COVID-19.
The government's original plan was to ban online ads and TV commercials for HFSS products that appeared before 9pm, but policymakers are now in consultation over whether to implement an outright ban of HFSS ads online instead of a watershed. The consultation closes on 22 December 2020.
The proposal will not only impact food and drink brands, but also affect ad agencies and broadcasters who rely on this income. Cancer Research analysis found that almost half of all food ads shown on ITV, Channel 4, Channel 5 and Sky One were for HFSS products, rising to almost 60% between 6pm and 9pm (when deemed to be viewed most by children).
The plans have been attacked by some of the UK's biggest food companies and advertising bodies, who wrote a joint letter to the Prime Minister on 20 November 2020 expressing their concerns and calling for more time to respond to the consultation. They describe the proposal as disproportionate and say that the evidence base underpinning the proposal lacks in both detail and efficacy.
They did agree that HFSS products should not be targeted at children, however, the government's own research suggests that the ban would only reduce each UK's child's calorie intake by 1.7 calories per day, so it's questionable how effective the proposal would be in practice.
There are existing rules in the advertising codes which prohibit TV advertising for HFSS products in or around programmes with an audience comprising 25% or more of people aged 16 or under. These rules were extended in 2017 to cover non-broadcast ads. The new proposal seeks to remove any uncertainty.
We expect this debate to continue into 2021. If the government does decide to implement a blanket ban on all online ads, we'd expect to see this legally challenged by those significantly affected.
Influencer posts continue to dominate online complaints to the ASA. Data released this year from the ASA showed that one in four complaints submitted to them in 2019 concerned influencer posts. This suggests the public is now applying greater scrutiny to ads they see from influencers online. It may also be a result of the tougher approach to influencer ads that the ASA has taken in recent years.
2020 saw the first ASA ruling on a TikTok post. This concerned a post on blogger Emily Canham's TikTok account, which featured a video of Emily Canham using a GHD-branded hairdryer and straighteners. The ruling provides a reminder that the ad rules apply to influencers and brand partners across all online and social media platforms. The ruling was also interesting because it concerned added-value posts (ie posts outside of contract obligations) and confirmed that such posts could be considered an ad under the advertising code.
Influencer advertising will continue to be a focus for the advertising regulators in 2021. Earlier this year, following feedback from influencers and ad agencies, the ASA and CMA issued an updated version of their guide to ad labelling and disclosure for influencers. The new version does not contain any material updates, but it does direct influencers to various new resources and flowcharts to help them comply with the rules.
More recently, the CMA undertook an investigation into hidden advertising on Instagram after concerns were raised that too many social media users were posting content without making clear when they had been paid to do so. The CMA found that Instagram was not doing enough to prevent this, which led to Instagram agreeing to implement changes and news tools on the platform to make it easier for all users to comply with consumer protection law when posting content.
By the end of 2020, anyone attempting to endorse a business on Instagram will be prompted to confirm whether they have been paid. If they have, they won't be able to publish the post before including an appropriate disclosure. By summer 2021, Instagram will report users posting suspected unlabelled content to the businesses whose products or services they are endorsing.
It remains to be seen how this will work in practice but we hope to see a move away from Instagram's Paid Partnership tool, which has good intentions but – according to the ASA and CMA guidance for influencers – is not enough on its own (influencers are also required to use an appropriate label, such as #ad).
Instagram and the CMA will hopefully have this at the back of their minds when implementing any changes, to ensure that any new tools will be adequate on their own. Simplifying the process will benefit both influencers and consumers.
2020 has been a year of heightened awareness for diversity, brought about in particular by the Black Lives Matters movement which has been a catalyst for widespread coverage and debate about race and diversity more generally. These issues will remain at the forefront of minds in 2021 and we are predicting an increase in ads which highlight them, particularly given the UK's multi-cultural and diverse society.
Advertisers must ensure they do this in a positive way and not get it wrong. The advertising codes state that ads must avoid causing serious or widespread offence on the grounds of race. They also state that advertisers should consider public sensitivities before using potentially offensive material.
There have been rulings against ads which cross the line. The most recent of these was handed down in September 2020, when the ASA ruled that a Facebook post with the heading "BLACK CARS MATTER" trivialised the Black Lives Matter movement and was likely to cause serious offence. It was held to breach the rules.
Advertising will be placed under more scrutiny in 2021 than ever before. Not only will ads need to be compliant with the rules, but there is also be an increasing demand for greater diversity in ads, which will be required to reflect the UK's diverse population more accurately. Advertisers who choose to ignore this will risk alienating their audience and causing significant reputational damage to their brand.
In response to the growing number of products and services being marketed as environmentally friendly, the CMA announced in November 2020 that it will investigate descriptions and labels used to promote products and services making such claims, and whether they could mislead consumers.
The CMA's concern is that businesses could be incentivised to make misleading, vague or false claims about the sustainability or environmental impact of the things they sell. Once its investigation is concluded, the CMA intends to publish guidance for businesses in summer 2021 to help them support the transition to a low carbon economy without misleading consumers.
The ASA has launched its own Climate Change and the Environment project. It will be assessing how effective its rules are in governing environmental claims and will be reviewing what other regulators and legislators are doing to tackle depictions of excessive consumption in ads. The ASA is aiming to develop new advice and guidance for advertisers so they can make responsible and accurate environmental claims.
The European Commission has launched a public consultation on a proposed Regulation which could require companies to substantiate the claims they make about the environmental footprint of their products and services. The aim is to ensure that claims are reliable, comparable and verifiable across the EU and provide a standard by which to measure and assess the claims. It hopes to reduce 'greenwashing', where companies give a false impression of their environmental impact. The consultation closes on 3 December 2020 and a proposed regulation is planned for Q2 2021.
While any legislation will not be implemented in the UK (due to Brexit), understanding how environmental claims can be made in the EU27 will be an important factor for advertisers when determining their regional approach.
Brexit is coming, and the good news is that the implications on advertising law will be minimal, at least in the short term. The UK's self-regulatory advertising model, which operates at a national level, will remain unaffected. The ASA's power and approach are not expected to change, and neither are those of Trading Standards and the CMA, who also play a role in advertisement enforcement.
All advertising rules in force now will continue to remain in force after Brexit. The advertising codes include rules which are derived from EU law, but the law will remain part of UK law. Therefore, advertisers won't need to change their approach to compliance with the codes in the short term.
Over time, UK law could diverge from EU law. It could become stricter or more relaxed and the first example of this we may see is the rules concerning the advertising of HFSS products. It's possible that the UK could seek to align its regulatory standards to other countries, such as the US. However, there's nothing on the horizon yet.
If you’d like to discuss any of the issues raised in this article in more detail, please contact a member of our Technology, Media & Telecommunications team.
by multiple authors
by multiple authors