ASA to focus on misleading cost-saving claims
The ASA has warned advertisers not to mislead consumers about possible cost savings on household bills. The warning follows a series of ASA rulings on claims in online display adverts about potential cost savings for various plug-in mini heaters.
The ASA has made it clear that it will be paying attention to cost-saving claims, particularly relating to heating costs. It has also provided recommendations for advertisers to help ensure they do not mislead consumers, which include not exaggerating the effects of products, being mindful of vulnerable consumers and having documentary evidence to back up any claims made.
CAP and BCAP update environment guidance to include carbon neutral and net zero claims
CAP and BCAP have published an update to their guidance on environmental claims in advertising so that it specifically covers carbon neutral and net zero claims. The new guidance includes the following:
- Avoid using unqualified carbon neutral, net zero or similar claims. Information explaining the basis of the claims should be included.
- Ensure that accurate information is included about whether (and the degree to which) carbon emissions are being actively reduced or the claims are based on offsetting.
- Base claims of future goals on a verifiable strategy to deliver them.
- Where claims are based on offsetting, comply with the usual standards of evidence for objective claims and include information about the schemes used.
- Where it is necessary to include qualifying information about a claim, set out that information sufficiently closely to the main aspects of the claim for consumers to be able to see it easily and take account of it before they make any decision. The less prominent any qualifying information is and the further away it is from any main claim being made, the more likely the claim will mislead consumers.
The ASA will now monitor compliance. It may invite CAP to launch a review and provide updated guidance about what forms of evidence are more or less likely to be acceptable to substantiate such claims in advertising. The ASA will also be taking proactive action immediately to address any unqualified claims which it says are likely to breach existing rules.
CMA expands misleading green claims project to 'Fast Moving Consumer Goods'
The CMA has announced that it will be expanding its misleading green claims project to look at Fast Moving Consumer Goods (FMCG).
The review will examine products that are essential items used by people on a daily basis and repurchased regularly, such as food and drink, cleaning products, toiletries, and personal care items. The CMA will analyse environmental claims made about such products – both online and in store – to consider whether companies are complying with UK consumer protection law. Problematic claims might include:
- vague and broad eco-statements eg packaging or marketing a product as ‘sustainable’ or ‘better’ for the environment, with no evidence
- misleading claims about the use of recycled or natural materials in a product and how recyclable the product is
- incorrectly branding an entire range as ‘sustainable’.
If the CMA uncovers evidence suggesting any green claims are misleading, it will consider taking enforcement action using its formal powers.
CMA launches greenwashing investigation into ASOS, Boohoo and Asda
Concerned about the way that products are being marketed to customers as "eco-friendly", the CMA has opened an investigation into ASOS, Boohoo and Asda, looking into green claims made about their fashion products. The CMA has released a video on the investigation. The investigation will consider:
- whether statements and language used are too vague, creating an impression that eco-friendly clothing collections are more environmentally sustainable than they actually are
- the criteria used to decide which products to include in eco-friendly collections and why items have been included when they do not meet the criteria used
- the lack of information provided to customers about items included in eco ranges
- potentially misleading statements made about fabric accreditation schemes and standards.
The CMA has not yet reached a view on whether consumer protection law has been breached. The wider CMA review of potentially misleading environmental claims in the fashion and other sectors continues, and more investigations might be opened.
ASA publishes advice on adverts for mobile games
The ASA has published advice on adverts for mobile games. The advice focuses on:
- Harm and offence issues: The ASA says that over-sexualisation and objectification are key issues and that the defence of 'attempts at humour' is unlikely to be successful where this is the case.
- Targeting: The ASA says that adverts should be appropriately targeted. For example, it is not acceptable to place adverts for mobile games showing sexually suggestive content within other mobile games rated PEGI 3 that could be downloaded and played by children.
- Accuracy: The ASA says that marketers should ensure that any visuals or game descriptions accurately represent the game being advertised.
FCA cracks down on illegal influencer promotions by bloggers
The UK Financial Conduct Authority (FCA) has published a press release directing social media platforms to take a proactive approach to identifying and removing illegal financial promotions advertised by bloggers and influencers. Only groups authorised by the FCA can offer financial promotions in the UK.
The FCA has seen a surge in the number of misleading product promotions by social media influencers and bloggers which has led it to issue a record number of take-down orders. The FCA required firms to amend or remove over 8,500 promotions in 2022, 14 times more than in 2021.
DCMS-commissioned report on digital consumer issues published
The report presents a taxonomy of digital consumer harms, identifies the root causes and the factors that perpetuate the harms, and considers approaches to quantifying the economic impact of the harms. Among the harms covered are deceptive online choice architecture and excessive advertising.
UK government delays HFSS regulations again
The UK government has announced a further 21-month delay to the introduction of the 9pm watershed for TV adverts for HFSS (high fat, salt or sugar) products and the ban on paid-for online advertising of them (see our summary of the HFSS regulations here).
The new rules were originally planned to come into force in January 2023. They were postponed for a year and have now been further delayed until 1 October 2025. Meanwhile, the government is seeking feedback on the text of the Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2022, which will implement the new rules.
EU Commission conducts sweeps on dark patterns and Black Friday sales
The European Commission and national enforcement authorities of various Member States have conducted sweeps on dark patterns and Black Friday sales. The sweeps comprise screening websites to identify breaches of consumer law in a given online market followed by enforcement action by national authorities.
The Commission says that discounts presented to consumers by retailers on Black Friday are often untruthful or misleading. Under the coordination of the Commission, 12 national authorities in EU/EEA countries monitored the prices of 16,000 products from 176 websites. They found that "approximately one announcement out of four was inconsistent with EU law and that violations occurred in at least 43% of the screened websites."
Dark patterns are interfaces designed in a particular way to push consumers into making decisions that may not be in their best interest. The European Commission’s study revealed that they are increasingly used by online traders. The national authorities of 23 member states plus Norway and Iceland checked 399 websites and apps of retail sellers active in sales of products on their own account for any of three categories of darks patterns (fake countdown timers, false hierarchies and hidden information). They found that 148 out of the 399 checked contained at least one of these categories of dark pattern.
National authorities will now contact the traders concerned to seek rectification of their websites and take further action according to their national procedures, if necessary.
EU Commission consults on evaluation of consumer protection laws
Following a call for evidence in June 2022, the European Commission recently undertook a public consultation to determine whether existing consumer laws are adequate to ensure a high level of consumer protection in the digital environment. The consultation covered issues including dark patterns, influencer marketing, marketing of virtual items and non-personalised advertising.
EU Commission sends statement of objections to Meta alleging abusive practices benefiting Facebook Marketplace
As part of its formal antitrust investigation, the European Commission has informed Meta of its preliminary view that the company breached EU antitrust rules by distorting competition in the markets for online classified adverts. The Commission says that it "takes issue with Meta tying its online classified ads service, Facebook Marketplace, to its personal social network, Facebook. The Commission is also concerned that Meta is imposing unfair trading conditions on Facebook Marketplace's competitors for its own benefit." Meta now has the chance to respond in writing and request an oral hearing to defend its position.
CMA amends timetable for investigation into use of advertising data by Meta
The CMA has said that it will extend the period of its antitrust investigation into Meta’s conduct in relation to the collection and/or use of personal advertising data to summer 2023. The CMA is investigating whether Meta might be abusing a dominant position in the social media or digital advertising markets through its collection and use of advertising and single sign-on data.
This article was co-authored by Callum Chamberlain
