A quick overview
This quarter saw a continued focus on sustainability-related rulings and the misleading impact of inflating or omitting material information, in addition to rulings on the denigration of competitors, alcohol and affiliate programs. The ASA ruled against deodorant brand Fussy for a derogatory comparison with ostensibly fictitious brand "Mynx". A complaint against restaurant chain Las Iguanas was upheld for encouraging irresponsible drinking with its TikTok video ad featuring a person under the age of 25, while Simmer's humorously intentioned social video made misleading use of Dragons' Den footage to promote its food products, eliciting a complaint from the contestants originally featured in the episode.
Wild deodorant was found to have referenced, albeit indirectly, a misconception that traditional deodorant was linked to breast cancer, while NOW TV's lack of clarity in communicating its paid-for subscription plans was similarly reprimanded. A suite of complaints instigated by the ASA resulted in rulings against ads for e-cigarette brands' affiliate programmes, indicating that this continues to be an area of proactive focus for the ASA.
The ASA has continued to adopt a thorough and robust approach in its consideration of environmental claims: Wessex Water's two-out-of-four-star EPA rating and undisclosed history of releasing sewage into the environment amounted to omissions of material information, while Luton Rising's allusion to its "environmental limits" and Virgin Atlantic's to "100% sustainable aviation fuel" were also deemed opaque.
- Date of ruling: 19 June 2024
Two ads for deodorant company Fussy Ltd, seen in December 2023, showed an image of a black, red and green deodorant product called "Mynx" and referred to the high annual volume of unwanted and wasted gifts, positioning Fussy as a sustainable alternative.
The ASA cited the Cap Code's provision that ads comparing a product with an identifiable competitor must objectively compare at least one "material, relevant, verifiable and representative feature" of both products. Further, ads must not discredit or denigrate competitors. The look-and-feel of the fictitious "Mynx" brand was understood to allude to the Unilever-manufactured "Lynx" deodorant product and as such constituted a comparison with an identifiable competitor.
References in the context of the ad to "unwanted gifts" were deemed pejorative, positioning Fussy as the more desirable and valuable brand. Further, use of the name "Mynx" conjured images of a troublesome and flirtatious person, also denigrating the competitor's brand. The ruling shows that referencing a well-known brand (even obliquely) can sometimes be problematic, as well as the value to brands of ASA complaints.
- Date of ruling: 3 July 2024
A TikTok video for the Canterbury branch of restaurant Las Iguanas depicted someone falling over, spilling a drink and lying on the floor, declaring "[…] you too can leave bottomless brunch like this". Complainants averred that the ad irresponsibly encouraged excessive drinking and featured someone who appeared to be under the age of 25.
The CAP Code provides that marketing communications must be socially responsible and refrain from showing unwise drinking habits. While the ASA acknowledged that the "falling" motif of the ad was a common theme developed by the individual social media manager of the account, it nonetheless found that it encouraged excessive drinking of alcohol and presented this hazardous state as an aspirational way of leaving a bottomless brunch.
Las Iguanas confirmed the person in the video was under 25 at the time the ads were seen. This breached the CAP Code, which states that people in ads for alcohol must not be, nor seem to be, under the age of 25.
- Date of ruling: 17 July 2024
A Facebook post and paid-for TikTok ad for food delivery service Simmer interspersed video clips from the reality TV investment programme Dragons' Den with a video of a man promoting Simmer's product. In the ad, Dragons' Den investors comment, right after images of Simmer's food are shown, "Honestly, it's that good" and "I really like this". Complainants included representatives of Planthood Ltd, which appeared in the original Dragons' Den episode from which the clips were taken.
The ASA considered that viewers would understand the ads to feature genuine praise delivered by Dragons Den investors to Simmer for its products on a real episode of the show. Despite Simmer's protestation that the ads were intended as an April Fool's Day joke, the ASA noted that they had been published on 28 March, not 1 April.
It was understood that consumers would understand the ads to depict an authentic Dragons' Den endorsement of Simmer's products and consequently they were deemed misleading.
- Date of ruling: 24 July 2024
An ad seen on YouTube showed a woman with bruises and scars on her chest applying Wild deodorant. The voiceover stated: "As a breast cancer thriver I’m prioritising my health and I’ve decided to finally go Wild. I’ve seen so many positive comments about how it’s completely natural […] I had to see for myself […]” A complainant alleged the video implied a misleading link between traditional deodorants and breast cancer.
The woman's switch to a "natural" product implied her previous deodorant was not natural, and that she had made the transition for health reasons. The ASA considered that the ad alluded to a misconception that traditional deodorants were linked to breast cancer. For example, the explicit mention of breast cancer, in tandem with the visual emphasis on the woman's bruising and scarring, when used in conjunction with her switch to natural deodorant, were deemed to hint at this misconception, without asserting it outright.
In turn, the ad was understood to imply that Wild, a natural deodorant, could be differentiated from harmful "traditional" deodorants. As such, the ASA expected to see sufficient evidence to substantiate this positioning, an expectation which Wild did not deliver and could not support, rendering its ad misleading.
- Date of ruling: 31 July 2024
NOW TV's home page promoted an offer for the "ENTERTAINMENT 6 MONTH SAVER", a subscription plan which included free trials for Cinema and Boost. At the bottom of the home page, an FAQ section included an item called "What do I get with NOW Boost? […] Ad-free: Enjoy an ad-free experience. Ad-free excludes live channels and trailers promoting NOW content". A complainant challenged the ad's failure to communicate that, without the Boost upgrade, all NOW TV memberships included ads, averring this omission was misleading.
Ads must not mislead consumers by omitting or concealing material information, including by communicating it in an ambiguous manner. For this purpose, material information is information the consumer needs to make an informed decision in relation to a product.
While the ASA acknowledged that there has been an uptick in paid-for subscription services featuring ads, this development has only been in place since 2021, and therefore was a relatively recent one in the streaming landscape. Further, the ASA understood that the presence of ads was a significant factor in decision-making for subscribers who valued an uninterrupted viewing experience over price, and vice versa. As such, the showing of ads was deemed material information that merited clear presentation to consumers weighing up a purchasing decision.
Details of the Boost upgrade and its impact on the service's ads were not readily accessible but rather appeared in a drop-down menu of T&Cs. Further, the link between Boost and the ad-free offering was not clearly communicated until consumers reached a Boost webpage where its ad-free status was named as one of its features. This was two clicks away from the main text. As such, the ads did not make clear that the Boost upgrade was required to watch the service ad-free, even where the customer may already have a paid-for subscription plan.
- Date of rulings: 26 July 2024
This trio of rulings published by the ASA on 26 July 2024 forms part of the Authority's wider work combating the promotion of electronic cigarettes through affiliate schemes. All three entities are e-cigarette brands promoting affiliate schemes, which encourage users to advertise the product via their own social media channels, generating income through affiliate codes and cuts of final revenue, a practice which has likely contributed to the rapid rise of e-cigarette use over recent years.
The CAP Code has banned the advertising of unlicensed nicotine-containing e-liquids and their components in certain media, reflecting a legislative ban brought about by the Tobacco and Related Products Regulations 2016 (TRPR). Except for trade media (ie that targeted exclusively at the tobacco trade), such ads should not appear in newspapers, magazines, periodicals, online media and some other forms of electronic media.
None of the three ads were for specific named e-cigarettes or vaping products, but the ASA held that they did have the indirect effect of promoting such products, insofar as the affiliate programmes encouraged people to endorse e-cigarette products online. As such, the ads had the effect of encouraging consumers to promote the sale of nicotine-containing e-cigarettes and their components, not licensed as medicines, in online media. This, in turn, encouraged members of the affiliate programs to breach relevant regulations, including the TRPR.
- Date of ruling: 10 July 2024
A TV ad for Wessex Water expounded on its current environmental endeavours, including investing £3m to "tackle storm overflows", building more infrastructure, separating rainwater from sewage and monitoring changes to water quality. The ad listed some of the ways "we can all […] help", including binning wet wipes and collecting rainwater to keep it out of sewers. A complainant alleged that the ad was misleading given its omission of Wessex Water's record of releasing sewage into the environment.
The BCAP Code provides that ads must not mislead consumers by failing to provide material information, and that environmental claims must be sufficiently substantiated. The textual and visual implications of the ad, including the phrases "a different course" and "A better way for our waterways is already underway", in addition to the fade-in of green wetlands imagery, indicated that positive environmental change was already being attained.
While the ASA accepted that Wessex Water's efforts around storm overflows were likely to ameliorate its environmental impact, its prior issues with storm overflow problems had caused significant environmental harm, as reflected in its most recent EPA rating available: two stars out of a possible four. This jarred with the impression left by the ad; failure to disclose such material information amounted to a breach of the Code's provisions on misleading advertising and environmental claims. The ASA is in line with similar rulings against water companies last year (here) indicating that the ASA continues to take a robust approach to environment claims where material information is omitted and/or cannot be adequately substantiated or the advert ignores the wider business practices of the advertiser.
- Date of ruling: 17 July 2024
A digital newspaper ad for cruise company Hurtigruten Expeditions offered "Free flights to Svalbard and more", and later professed "Since 1896, we've been the leaders in sustainable expeditions". The ad was challenged by a complainant who considered it misled consumers with regard to the environmental impact of the trips advertised.
The ad did not qualify its sustainability claims with the caveat that they applied to the sea travel element of the expeditions only. The ASA considered that "sustainable expeditions" was an absolute claim which would be interpreted by consumers as encompassing the entire lifecycle of the trip, including travel to and from the destination.
While the ASA acknowledged that Hurtigruten had taken some steps to alleviate its environmental impact, these measures were insufficient to merit an absolute "sustainable" claim regarding the cruise element of the trip (irrespective of the flight element), nor were these measures detailed in the ad. Further, the necessity of air travel to the cruises' departure sites generated high levels of climate change-inducing emissions. Overall, the ad was deemed misleading with regard to Hurtigruten's holidays' impact on the environment and amounted to a breach of the CAP Code.
- Date of ruling: 10 July 2024
A poster on the London Underground and a corresponding ad in a current affairs magazine, both for Luton Rising, the owners of London Luton Airport (LLA), attracted criticism from a group of complainants including activist groups Adfree Cities and Group for Action on Leeds Bradford Airport. Both ads stated, "If we miss our environmental limits, our expansion will be stopped in its tracks". The complainants averred that the ads misleadingly omitted key information about the expansion's environmental impact.
The CAP Code states that bases for environmental claims must be clear. The purpose of the ads was to communicate to the public the environmental mitigation efforts surrounding the airport's expansion. It was considered that people would understand from the ads that the proposed expansion was guard-railed by environmental limits and would be forced to halt if these were breached.
Both ads mentioned the Green Controlled Growth Framework, which governed the environmental limits. The Framework referenced three sources of greenhouse gas (GHG) emissions linked to the airport's expansion, but only imposed limits on expansion for carbon emissions on two of them, excluding air traffic movements. In 2019, of LLA's total GHG emissions, 83.7% stemmed from air traffic movements. The ASA considered that people would understand environmental limits on carbon emissions to include those deriving from air traffic movements. The ASA ruled that this was material information likely to influence the public's understanding of the ads, amounting to a misleading omission.
- Date of ruling: 7 August 2024
A radio ad for Virgin Atlantic mentioned its Flight 100 making a "unique flight mission" across the Atlantic using "100% sustainable aviation fuel" and invited consumers to "See the world differently".
The ASA considered that many audience members would understand the aviation fuel was 100% sustainable, rather than that the flight had been made using solely sustainable aviation fuel. Further, the ASA understood it was unlikely consumers would know that ostensibly sustainable aviation fuels still had negative environmental impacts, and against this backdrop would understand a trip driven by "100% sustainable aviation fuel" to be entirely free from such impact. A Virgin-commissioned consumer opinion survey confirmed this level of confusion, for example, 11% of respondents believed sustainable aviation fuel had no environmental impact.
It was further noted that the aviation fuel powering Flight 100 had saved 64% of greenhouse gas emissions compared to its fossil fuel counterpart, but this was not disclosed in the ad. Further caveats included the risk that, should biofuels be diverted away from other industries, they might revive fossil fuel consumption. As such, it was considered that a significant percentage of the audience would be left with an inflated impression of the environmental benefits of the mission and Virgin Atlantic's environmental credentials.
