27 June 2024
Advertising Quarterly - Q2 2024 – 3 of 5 Insights
The Advertising Standards Authority (ASA) has issued guidance on the use of qualifications in advertisements. Qualifications cover a wide array of text within advertisements, both online and in-print, including on-screen text, small print and footnotes.
Key pitfalls highlighted by the ASA include:
Failure to include a qualification, where a qualification is required.
For more on the use of small print in AI generated ads, see here.
The ASA has issued guidance on the use of animals in advertisements. The guidance can be summarised as follows:
Ensure animals' welfare is treated as a paramount concern.
The High Court of England & Wales has ruled on a preliminary issue in a (rare) comparative advertising claim. The claimants, Gibraltar and VetPlus, contended that various adverts made by the defendant, Viovet, in which it compared its own-brand veterinary nutraceutical products with VetPlus' products, constituted trade mark infringement by breaching the Business Protection from Misleading Marketing Regulations 2008. These Regulations require comparative adverts to "objectively compare one or more material, relevant, verifiable and representative features" which may include price.
The complaints related to the following:
Certain advertisements (relating to just one VetPlus product, Aktivait), presented the customer with a button stating "Read More". This took the customer to an advertisement for one of Viovet's own-brand products, "RenewMe", which stated that it "contains trusted ingredients found in Aktivait" and was a "more cost-effective option".
The preliminary issue before the Court was the message conveyed by the comparative adverts. The Court held that the message being conveyed was that Viovet's own-brand products which were offered in the alternative to VetPlus's products were comparable in nature, composition, specification, efficacy and/or quality to VetPlus's products.
Whether any of the comparisons were objective, as opposed to misleading, will be for the main trial. The decision emphasises the importance of making sure that comparative adverts meet the legal requirements.
BCAP has published a consultation on BCAP Code rule 14.5 to explicitly restrict ads for qualifying cryptoassets to specialised financial channels and programmes.
In practice, ads for these products have already been restricted from mainstream broadcast media as a result of being regulated by the FCA in 2023. BCAP proposes introducing a new sub-rule to explicitly name this category of ads as one that should be limited to specialised audiences, as is the case for other types of complex financial products.
This would result in greater clarity for advertisers and broadcasters and ensure that ads for high-risk financial investments are not shown to general broadcast audiences.
The ASA has published its 2023 annual report, marking the conclusion of the ASA's previous five year strategy aimed at having "more impact online" and the commencement of its new strategy for 2024 to 2028 on "AI-assisted collective ad regulation". The new strategy will focus on:
Operational transformation. The ASA will prioritise proactive regulatory projects, adopting a ‘whole system’ approach to ad-related issues that cause the most detriment to people.
The report states that the majority of investigations for 2023 were proactive and directed at non-paid for advertising. The ASA and CAP secured the amendment or withdrawal of 27,378 ads in 2023. 92% resulted from proactive work enabled by the ASA's "Active Ad Monitoring system" and 89% of these were non-paid for ads, posted from organisations' own social media accounts / websites.
The Active Ad Monitoring system, which captures and processes large volumes of online ads from various channels and applies machine learning models to prioritise the most problematic, processed over 500,000 ads per month by the end of 2023.
The report also considers the following areas:
Youth vaping. The ASA issued an Enforcement Notice which was addressed to over 150 vaping brands. Going forward into 2024, the ASA will be issuing a new Enforcement Notice that addresses most, if not all, of the key players and spans across all social media platforms and all types of advertising.
Interim platform principles. 2023 also saw the conclusion of the ASA's one-year pilot Intermediary and Platform Principles initiative, focused on bringing digital businesses more closely into the ASA system. In October, the ASA independently concluded “without question, that over the course of the twelve-month pilot the 10 participating companies implemented the Principles that were applicable to the services they offer… (and) demonstrably supported the ASA” to regulate ads online. As a consequence, IPP now offers a tried-and-tested way in which platforms and intermediaries can play a part, and be seen to play a part, in supporting the ASA to help secure responsible advertising online. In 2024, the ASA is committed to championing how the ASA thinks the regulatory framework should develop.
The ASA has published research into people's understanding of environmental claims in food and drink ads, concluding that, while widespread enforcement action is not needed, some issues would benefit from further dialogue and consideration. It recommends, in particular:
Industry engagement on regenerative farming aimed at producing related guidance.
The ASA has published advice on the privacy rules detailed in sections 6 and 10 of the CAP code. In summary, the guidance includes the following:
People with a public profile. If someone is in the public eye, they still have a right to privacy.
Following a review by CAP, minor amendments have been made to CAP and BCAP's guidance on in-game purchases, including loot boxes. The guidance, initially introduced in 2021, has undergone minor amendments for increased clarity but maintains its original policy stance. Key clarifications include that:
Advertisements featuring content that necessitates additional purchases must explicitly indicate this requirement.
The ASA has ruled on several complaints reinforcing that non-disclosure of the presence of in-game purchases is misleading. As these elements could significantly influence consumer decisions, ensuring clear disclosure in advertising is imperative.
Moreover, CAP acknowledges ongoing discussions by the Department for Digital, Culture, Media, and Sport (DCMS) about loot boxes' impact and potential regulatory responses. The ASA notes that the question of whether loot boxes should be defined as gambling and banned either from sale or advertising is a legal question which falls outside CAP and BCAP’s remit. However, they remain vigilant observers of policy changes to guide evidence-based regulation.
CAP has issued guidance reiterating the importance of unambiguous advertising disclosures in podcasts, particularly when transitioning from editorial content to advertisements. The guidance does not introduce new requirements but underscores the necessity for "clear, up-front signifying terms" indicating advertisement segments. In particular:
Up-front generally means that the term should be presented before the commencement of the advertisement so listeners or viewers can anticipate the change in content type.
Presenters are encouraged to articulate these signifying terms distinctly and at a pace that ensures comprehension, allowing audiences to recognise the shift from editorial to paid content. While there is no explicit requirement for auditory cues like jingles before/after an ad break, their use may facilitate audience understanding that an advert will follow.
Where paid-for references feature within the main programming (rather than in ad breaks) they should also be made clearly identifiable – for example, by stating that the segment is paid-for, or referring to a sponsor brand at the outset of the content appearing.
The ASA has published guidance on advertising alcohol alternatives. This follows the publication of new CAP rules on alcohol alternative product advertising that were announced at the end of last year.
Alcohol alternatives are non-alcoholic drinks (those at or under 0.5% ABV) that are intended to replace alcoholic drinks in contexts where they would normally be consumed eg non-alcoholic beer.
The Code states that an ad will be subject to the new rules “…if it is likely to be understood by the audience as an ad specifically for an alternative to alcohol, whether in general or as a non-alcoholic version of a particular alcoholic drink…”.
Among other things, the guidance explains how alcohol alternatives can be marketed without inadvertently encouraging inappropriate consumption of alcohol, and that the use of alcohol-related imagery (similar packaging, glassware, or serving styles) without clarifying the alcohol-free nature of the product is likely to be considered to have the effect of promoting alcoholic drinks, even though the product itself is an alcohol alternative.
The ASA has published guidance on the advertisement of dental hygiene products. The guidance aims to remind marketers that they must hold robust supporting evidence before making objective claims in their advertisements – this is particularly relevant when making efficacy claims about a dental product or treatment.
When using before and after images, marketers should also ensure they don’t give a misleading impression about the effects likely to be achievable when using the product. Images should be an accurate representation of the product’s capabilities and be reasonably representative of the effects likely to be achieved by most consumers using the product.
While toothpastes are generally considered to be cosmetic products, if a product or claims about it are medicinal, marketers should ensure that the product has a marketing authorisation from the Medicines & Healthcare products Regulatory Agency and that the claims made comply with that licence.
The EU Commission and the European Network of Consumer Protection Cooperation Authorities have sent letters to 20 airlines identifying several types of potentially misleading green claims, and inviting them to bring their practices into line with EU consumer law within 30 days.
Claims taken issue with include:
Those without supporting verifying information.
The CPC can take enforcement action if the airlines do not comply within the specified period.
The EU Council has published recommendations for the EU Commission and EU Member States on how to support influencers in producing lawful and socially responsible content. The Council recommends:
Focusing on the impact of influencers on minors and the wellbeing of 'kidfluencers'.
The CMA has escalated its action against the Emma Sleep Group and their directors by issuing a letter before claim. The letter before claim follows extensive dialogue between the CMA and Emma Sleep, whereby the CMA sought a formal commitment from Emma Sleep in the form of undertakings to change their online sales practices, in particular, the use of countdown timers and 'high demand' claims. To date, the Emma Group hasn't agreed to provide undertakings that the CMA considers sufficient to address its concerns.
The CMA has informed the Emma Sleep Group that it is preparing to take court action and will launch proceedings if it does not commit to changing its practices without unnecessary delay.
As part of 'wash-up', the Digital Markets, Competition and Consumers (DMCC) Bill concluded its passage through Parliament and subsequently received Royal Assent (the latter on 24 May 2024).
The DMCC Act 2024 introduces substantial reforms to consumer law, empowering the CMA with direct enforcement powers, including the ability to levy fines up to 10% of global turnover for breaches of consumer protection law. Key reforms under the Act include:
The introduction of express provisions addressing "drip pricing", requiring specific pricing information to be included within any "invitation to purchase".
Further changes encompass updates in consumer savings schemes and the consumer alternative dispute resolution framework. The DMCC Act 2024 will be subject to secondary legislation by a future government, who will determine its timetable.
For more on the DMCC Act 2024, see here and here.
The ASA's report shows that children are seeing fewer ads for gambling, alcohol, and HFSS products on TV, in a continuing downward trend, and highlights that children’s exposure to all TV ads is decreasing.
The ASA has issued guidance on referring to Royalty in marketing. While incidental references to the Royal Family or mentions within third-party content such as books or films, may be permissible, advertisements should not imply that a product is endorsed by the Royal Family or is affiliated with royal events, if it is not.
Furthermore, marketers must refrain from using the Royal Arms/Emblems or referring to a Royal Warrant without appropriate permissions. When advertising souvenir products, it is important to avoid misleading consumers by making sure imagery and claims accurately represent the product. Advertisements must not suggest that unofficial merchandise is endorsed by or officially related to the Royal Family.
The ASA has issued guidance on treating mental health responsibly. It follows the ASA upholding a series of complaints on the topic. The CAP Code mandates that marketing communications must be prepared with a sense of responsibility to consumers and society, which extends to sensitive topics such as mental health. In particular, the ASA has made clear through various rulings that:
For children's ads, care must be taken not to negatively impact children's self-esteem or imply social media popularity is inherently valuable.
The guidance pays particular attention to advertising products associated with health and beauty, slimming, and therapies where certain conditions should only be mentioned under supervision of qualified health professionals.
The ASA has produced a blog setting out the position on advertising cryptoassets and NFTs. The ASA says misleading consumers is the biggest issue but also highlights that NFTs may be classed as investments and subject to relevant FCA rules.
Advertisers must consider what rights are conferred on the owner of an NFT and be clear where IP rights are not transferring as this will be material information. Advertisers should also specify the technical requirements needed to obtain and hold an NFT if the absence of that information is likely to mislead. Costs and fees must also be made clear.
The ASA has published guidance on publishing environmental claims/ads without misleading by omission.
The guidance mentions recent rulings on ads that highlight positive environmental actions without providing context on the brand's broader environmental footprint, potentially misleading consumers. These primarily focus on companies from sectors with substantial emissions such as oil and gas, as well as financial institutions whose investments in high-polluting industries were not transparently disclosed.
The ASA explains that, where brands communicate their sustainability goals and emission reduction efforts, they must remember that such claims must be contextualised within a company's overall environmental impact. The ASA expects ads to reflect comprehensive views of this impact; failure to do so may result in breaching the CAP Code.
The ASA has published guidance on green disposal claims (ie items being advertised as recyclable, compostable, or biodegradable). This guidance forms part of the ASA's wider Climate Change and the Environment project, which aims to improve consumer understanding of disposal claims.
In summary, the guidance states that advertisers must:
Robustly substantiate absolute claims like "100% recycled", ensuring they truly represent the entire product.
To help navigate these standards and prevent misinformation, advertisers are encouraged to consult the updated ASA Advertising Guidance document, which now features a dedicated section on environmental claims.
The ASA has published updated guidance on environmental claims within food advertising. This includes meat, dairy, and plant-based products. The guidance can be summarised as follows:
Sustainability Claims. Advertisers should exercise caution with the term 'sustainable', ensuring any absolute claims are highly substantiated due to varying sustainability metrics within food production.
The ASA has published a blog on issues around freedom of expression and the difference between fact and opinion in advertising (there being more leeway for the latter). The key takeaways are that:
27 June 2024
by Debbie Heywood and Louise Popple
by Ina Kamps, M.A. and Louise Popple