A quick overview
Various themes abound in the ASA's collection of rulings this quarter, from denigration of competitors to the importance of adequate promotional information and disclosure of commercial relationships.
We consider the Tonic Health ruling, which saw the brand reprimanded for its denigration of competitors including Bayer Plc's Berocca. The ASA also reiterated the importance of adhering to the Great Britain Nutrition and Health Claims Register when making nutrition claims.
Physical labels (and the need for adequate promotional information despite surface area constraints) were also considered, with a complaint against Kingsland Wine and Spirits upheld for its failure to fully explain the parameters of a competition it was promoting on its wine bottle labels. We also explore the ruling against Miniclip, which inadequately disclosed its use of lucky-dip-style in-app purchases or "loot boxes", making an ad for the game 8 Ball Pool misleading. Inadequate disclosure of an employee's commercial relationship with the brand elicited a ruling against We Are TALA, whose founder misleadingly promoted its products in a suite of social media posts.
We also discuss an adverse ruling against Portable Multimedia Ltd, who's dash cam ads were considered to be understood by consumers to be a screengrab of dash cam footage, when in fact they were stock images which had been manually enhanced.
Environmental-related issues arise again in the Easigrass ruling, including a misleading claim that recycling of the product in question was readily and widely available.
A number of rulings were not upheld, including those against the Alzheimer's Society, whose ad contained a confronting depiction of the disease, but was deemed to be sufficiently sensitive. Meanwhile, a review of Emma Willis's media profile, social media followings and brand partnerships ultimately led the ASA to consider her promotion of the Postcode Lottery not in breach of the Code, as she was not a person of particularly strong appeal to under-18s.
Top 10 rulings
ASA Ruling on Tonic Health
- Date of ruling: 15 May 2024
This ruling related to a website and Instagram reel for online vitamin retailer, Tonic Health. A product listing on its website compared a supplement with competitors' products, including Bayer Plc's Berocca, using a table to showcase the former's ostensibly higher vitamin content. The Instagram reel made similar comparisons, with the video providing: "Berocca Immuno here is £8 for a tube at 53p per for tablet but Tonic’s only 45p per tablet, you get more vitamins and no artificial sweeteners so a much better way to go for your health than Berocca."
All complaints about the advert were upheld. Both the website and the Instagram reel were found to discredit and denigrate competitors' products. Phrases like "dump the junk" alongside comparisons with other products suggested inferior quality of competitors' items without proof, constituting denigration under CAP Code rule 3.42. Additional claims about Berocca's motives were considered derogatory and breached advertising standards for factual comparisons.
The ASA further ruled that only authorised nutrition claims listed on the Great Britain Nutrition and Health Claims Register (the Register) can be upheld. The website ad was deemed to breach the Code as it presented an unauthorised "high in vitamins" claim and a non-specific comparative nutrition claim, neither of which are permitted by the Register. The ad also misleadingly included non-vitamin substances in its vitamin content claim.
Furthermore, the advertisement made a "reduced sugars" claim, implying a favourable comparison with competitor products. However, because Berocca contains no sugars, the Daily Immunity product could not be claimed to contain less sugar, therefore breaching the Code.
ASA Ruling on Kingsland Wines & Spirits
- Date of ruling: 22 May 2024
Labels around 'Campaneo Wines' bottles were considered by the ASA after a complainant alleged the labels failed to clearly communicate participation details for a promotion the brand was running. The label advertised a chance to win one of five pizza ovens, directing consumers to enter through the company's website and review the full terms and conditions there. However, it did not specify that entry must occur within 14 days of purchase or that proof of purchase was required.
Kingsland Drinks Ltd, responsible for the promotion, argued that space on the label was limited but deemed the instructions clear enough for consumers to find additional information online. They tracked sales through a single supermarket and planned to conduct the prize draw 14 days after selling the final promotional bottle.
The ASA ruled that this mechanism was problematic as customers could not know how many bottles remained or when the promotion would end. Hence, they needed to enter within 14 days of their purchase regardless. Omitting such crucial conditions was likely misleading and breached several rules under CAP Code, specifically related to promotional marketing (8.17, 8.17.1, 8.17.4.a, and 8.18).
Further, the ASA considered that there was enough space on the label to share the information in the first instance.
ASA ruling on Portable Multimedia Ltd
- Date of ruling: 5 June 2024
A website page advertised three dash cam models, promoting them as "capable of picking up the finer details such as number plates and road signs even in extreme low-light conditions" and for two models promising a “clear view of your surroundings, even at night". A complainant challenged whether the ad exaggerated the performance of the dash cams.
The ASA considered that consumers would believe the accompanying high-resolution image of a motorway at nighttime – featuring alongside the claims – to be a screengrab from real footage taken from the dash cams. Further, the ad did not specify which model the image had been sourced from, so the ASA considered that consumers would understand that it represented the visual clarity that could be achieved by any of the three models.
In actuality, the image was a stock photo in which formerly blurred-out number plates had been replaced with manually inserted readable plates giving the impression that the images were higher resolution than they actually were and that the dash cams would be able to read numberplates at night. Because the image had not been taken from footage of the advertised dash cams, the ASA ruled that the ad was in breach of rule 3.1 of the CAP Code (misleading advertising).
ASA ruling on Easigrass (Distribution) Ltd
- Date of ruling: 27 March 2024
A Facebook post on Easigrass's own account and a product webpage on its website promoted an artificial grass product's ostensibly green credentials, with both ads calling it "fully recyclable" and labelling the product "Kensington Eco Grass". Five complainants, including activist group Plastics Rebellion, queried whether the "fully recyclable" claim was misleading and could be substantiated and further whether "Kensington Eco Grass" as a product name (along with claims that "it offers a range of environmental benefits” and “ticks all the environmental boxes”) misleadingly indicated that the artificial grass was eco-friendly.
Both grounds were upheld. The ASA considered that consumers would understand the product to be entirely and readily recyclable at the end of its lifecycle, and that inadequate evidence had been provided to show it comprised materials that meant that this was the case. The artificial grass could only be recycled at specialist recycling centres, with only one such centre located in the UK.
On the second ground, the ASA ruled that the CAP Code provided there must be a clear basis for environmental claims, with a high level of substantiation for absolute claims. Inclusion of "Eco" in the name was deemed to imply that the product was "eco-friendly", and an accompanying lack of qualifications to the claims that the product, for example, "ticks all the environmental boxes" served to reinforce this impression.
The ASA considered - again - the relative inaccessibility of recycling centres for this product (with just three such sites across Europe), in addition to the environmentally detrimental impact of plastic production and the implications of replacing natural grass with artificial grass on biodiversity. This all meant that artificial grass could not purport to positively impact the environment across its life cycle.
ASA ruling on Miniclip (UK) Ltd
- Date of ruling: 20 March 2024
This ruling concerned a paid-for Facebook ad for the online game 8 Ball Pool. The game was promoted with the accompanying text "PLAY FREE NOW", and a link to its page on Apple's App Store.
It was contested by a games regulation researcher on the basis that significant information (specifically, that not all items featured in the ad were readily available without making an in-game purchase) was omitted.
The ASA relied on CAP Guidance which clarified that in-app purchases, particularly those which comprised random items, were material to a consumer's decision to buy a game. 8 Ball Pool offered virtual currency and items like pool cues for purchase, in addition to "lucky dip"-style purchases such as "golden spins".
Accordingly, the ad should have made it clear that random-item purchasing was offered in the game; on the facts, no such information was relayed. As such, the ASA found that consumers would not understand that loot boxes were part of the game and consequently the ad breached CAP Code rules 3.1 and 3.3 in relation to misleading advertising.
ASA ruling on DUSK (Retail) Ltd
- Date of ruling: 20 March 2024
The home goods brand DUSK put out a TV ad which showed an older woman sitting in a living room while telling the camera that she had flouted traditional methods of furniture buying ("flicking through endless swatches and then ordering a sofa for well over a grand") by purchasing direct from DUSK's website, freeing her up for other pursuits ("I decided to buy direct from dusk.com and have money left over to pay Carlo!”). The ad then showed a topless man waking on screen, with his head out of shot, pouring tea into the woman's tea cup. The ad amassed 40 complaints each contending that it objectified men and for that reason was harmful and offensive under the BCAP Code.
While the ASA recognised the fact that the man had been portrayed in such a way as to draw attention to his body – topless and with his head out of frame – his appearance in the ad was fleeting and the overall tone of the content was not sexually suggestive. It considered instead that the ad would be understood by consumers to be an "exaggerated scenario" with a "surreal and comical tone", and as such it did not objectify the character of Carlos. Although some audience members might have found the ad distasteful, it fell short of the BCAP threshold for irresponsibility or serious or widespread offence.
ASA ruling on the Alzheimer's Society
- Date of ruling: 5 June 2024
A trio of TV ads and one radio ad for Alzheimer's Society depicted family-centric vignettes of the disease. The first TV ad showed a man recounting his mother's many "deaths", each a significant moment of memory loss or erasure of agency or vitality: "Mum first died on 12th May 2019 when she couldn't work out how to prepare her legendary roast any more […] She died again when she asked me, her son, what my name was".
The other TV ads were abridged versions of this, with the same tagline: “With dementia, you don’t just die once. You die again and again and again. Which is why at Alzheimer’s Society we’ll be with you again and again and again.” The radio followed a similar narrative format, using the same tagline.
The ads generated a particularly high number of complaints, with 235 audience members alerting its content to the ASA. The ASA recognised that the depiction of Alzheimer's was an emotive one that was likely to elicit strong feelings both from those with dementia and those close to dementia sufferers. They also noted that the thematic prevalence of death and its potentially widespread emotional impact. Nonetheless, they considered that audiences would not interpret the recurrent references to death literally and would appreciate the aim of the ad, which was to raise awareness of the disease and the Alzheimer's Society's role in supporting sufferers and those caring for them.
The ASA was cognisant of the potentially distressing impact on those recently diagnosed with the disease, particularly early onset sufferers, among whom rates of suicide are heightened. However, the ads were deemed to be adequately sensitively depicted and to make it emphatically clear that the Alzheimer's Society was a source of support to those effected by the disease, ultimately outweighing its potentially upsetting impact. As such, and despite the high number of complaints, the ASA did not find a breach of BCAP Code rules on social responsibility or offence.
ASA ruling on We Are TALA Ltd
- Date of ruling: 22 May 2024
Two Instagram reels and four TikTok posts on Grave Beverly's accounts were investigated by the ASA. The ads showed Grace promoting various items of the brand TALA's clothing. 51 complainants called on the ASA to determine whether the ads were obviously identifiable as marketing communications, a CAP Code requirement.
Despite Ms Beverly's use of the first-person plural ("[W]e don’t play around here”) the two Instagram reels were not deemed to adequately disclose her commercial relationship with the brand, as founder and employee. Moreover, such language was situated part-way through the reels, necessitating audience engagement before the commercial relationship was disclosed. As such the ASA found they were not obviously identifiable as ads.
Similarly, although the Instagram reels were "co-published" (an Instagram functionality where two parties can post content jointly onto each of their respective pages), this was deemed not to be widely understood enough as a concept for it to amount to a commercial disclosure to audiences.
The TikTok ads also breached ASA requirements for obviously identifiable marketing communications. They appeared on Ms Beverly's own personal account and - though swashes of her viewership were considered to have recognised her as the founder and owner of the brand - a significant proportion would not have particularly given the algorithm-driven projection of her account onto non-followers' "For You" pages.
None of the ads contained a label such as #ad, and though some acknowledgement was made of Ms Beverly's interest in the business ("I don't think I have ever been so proud about how one of our pieces has turned out"), their placement mid-way through the sequence of the video meant viewers were required to engage with ads before being alerted to the commercial relationship between poster and brand. The ASA therefore concluded the suite of ads breached CAP Code rules 2.1 and 2.3, recognition of marketing communications.
ASA Ruling on Postcode Lottery
- Date of ruling: 1 May 2024
A TV ad for the People's Postcode Lottery featured presenter Emma Willis alongside the "V" logo for The Voice TV show. Emma Willis asks viewers, "With a share of 17.3 million to be won there really is only one question to ask yourself, is your door in the draw?" A complainant suggested that the ad featured a person likely to be of strong appeal to under-18s, in breach of BCAP Code rule 18.5.
The complaint was not upheld by the ASA: the BCAP Code provides that ads for lottery-related products must not be likely to appeal to children, particularly by engaging with "youth culture", and accordingly the ASA considered whether Emma Willis was likely to appeal to under-18s based on her public profile.
The suite of TV and radio programmes presented by Emma Willis, including Big Brother, The Circle, Cooking with the Stars and Delivering Babies were found to be largely adult-oriented, which was reinforced by Broadcaster’s Audience Research Board (BARB) data which did not reveal a significant child audience.
While Ms Willis' association with TV shows The Voice and The Voice Kids brought her into the realm of appeal to children (for example, she acknowledged her own children enjoyed the shows, and children's news platform Newsround gave it moderate coverage), BARB data reviewed by the ASA showed that the two programmes were more popular with audiences aged 55 and over. Likewise, her role as presenter (as opposed to judge or contestant) was not considered to be aspirational to under-18s.
A review of Ms Willis' social media profile revealed that the makeup of her followers aged 13-17 on Facebook and Instagram was not significant, and though figures for under-13s were not available, they were considered to be similarly insignificant given fewer under-13s were likely to have social media accounts than those in the 13-17-year-old bracket. Her commercial partnerships, with Marks and Spencer, Gilette Venus and Oral B were further deemed by the ASA to be "adult-focused brands", without widespread appeal to under 18s. The complaint was therefore not upheld.
ASA Ruling on JML Direct
- Date of ruling: 27 March 2024
This TV ad for JML's Hurricane Spin Scrubber showed women cleaning domestic spaces with the product, accompanied by a pair of hosts, one male and one female. The women relayed their satisfaction with the product, while a male voice-over read out a call-to-action ("To get your hands on the Hurricane Spin Scrubber and a sparkling clean home call now, or visit jmldirect.com"). A consumer complained to the ASA that the ad perpetuated harmful gender stereotypes, implying that only women were interested in domestic cleaning products.
Under the BCAP Codes, ads must not portray gender stereotypes likely to cause harm, or serious or widespread offence. While ads can show people carrying out gender-stereotypical actions, they must be mindful of portraying certain roles as being uniquely or exclusively associated with one gender. Women proliferated in the ad, with the main cleaners all being female, in addition to a number of women's torsos shown. While some sets of hands were shown, it was too difficult to tell whether these were male or female hands due to the fleeting nature of the shots.
Critically, the ASA considered that the one "readily identifiable man" was a host, depicted as an employee of the company and as being in a position of authority, rather than, for example, attesting to his personal satisfaction the product. Further, he was accompanied by a female host whose principal role appeared to be to observe and aid his presentation. This juxtaposition against a backdrop of exclusively women using the cleaning product in the domestic sphere led the ASA to conclude that the ad presented gender stereotypes in a way likely to cause harm, eliciting a ban.
