A quick overview
The ASA has issued a wide variety of rulings on topics such as online choice architecture, affiliate marketing and ad qualifications this quarter.
Several complaints relating to online choice architecture were upheld. These included ads for NOW TV's membership options (which were misleading), ads for Webloyalty's Complete Savings cashback reward programme (which did not clearly present the options available to consumers) and ads by O2, BT, EE, Virgin Media, TalkTalk and Plusnet (which breached rules on mid-contract price rises). The increased number of rulings focusing on online choice architecture confirms that this is an area of focus for the ASA (as it is for the CMA).
The ASA also issued several rulings that formed part of wider pieces of work. A string of rulings on ads for casino game apps formed part of a wider piece on gambling-like ads that implied consumers could win real world money or prizes when this was not the case. Another suite of rulings addressed complaints around affiliate marketing (also a significant area of focus for the ASA). Lastly, a complaint about an ad by Kerry Foods for a product featuring Garfield was upheld on the basis that it targets children.
The importance of prominently displaying significant information ('qualifications') in ads was emphasised in a variety of rulings, including rulings about ads for products that were being discontinued. The key learning here is that the date when a product is no longer available (and so the duration of the promotion) is material information that should usually be supplied.
Top rulings
- Date of ruling: 9 October 2024
A TV ad for 'Strings & Things' was shown on Channel 4 on demand. The ad featured a young girl jumping into her mum's shopping bag, eating a packet of Cheestrings and then floating through a "Cheestring world". The ad then featured Garfield, the cartoon cat, and a voice-over offering the opportunity to win a Garfield movie themed trip to California ("This summer win hundreds of prizes, including a Garfield movie themed trip to California. With Cheestrings and our new pizza flavour, get a slice of the Garfield action."). The ad then featured small on-screen text which stated, "purchase necessary, promotional packaging and receipt required, online entry only, 21+, ends 28/7/24, T&Cs apply." The complainant believed that the ad was for an HFSS (high in fat, salt or sugar) product and targeted children through its content thereby breaching the code as it contained a promotional offer and a licensed character popular with children.
The complaint was upheld on both accounts. The ASA determined that, despite Kerry Foods intending that the ad target an older audience, elements such as the inclusion of bright imagery, the Cheesetrings product itself, the voiceover that spoke in a child-like manner and the cartoon character Garfield rendered the ad appealing to those aged under 12. In particular, the ASA highlighted that Garfield's inclusion was more likely to be appealing to children considering the recent release of a U-rated Garfield film that was likely to be known to children.
The ASA concluded that the ad had breached CAP Code rules as the ad included a promotional offer and a licensed character in an ad for an HFSS product directed at young children. The ruling highlights how ads can inadvertently target an audience through its content, despite the intentions of the advertiser. This contrasts with the ASA ruling on the Hendricks Gin ad, which was found not to appeal to under 18s and so not to breach the CAP Code.
- Date of ruling: 9 October 2024
Another string of rulings issued by the ASA formed part of a wider piece on 'closing down' claims featured in social media ads. The Ahlen ad, along with the ads reviewed in the rulings on Kentesh Ltd, Moderny.co and Goodysee, were all identified using the ASA's Active Ad Monitoring system which utilises AI to search for online ads that may breach the CAP Code.
The ad published by Ashlen was a paid-for Facebook ad relating to a collection of sword hair pins and featured the text "Sadly, we are closing our sword hair pin collection. Last chance, everything 60% off!", "Shop now", and "Sword hair pin 60% off while stocks last". Despite these claims, the sword hair pin collection was available to purchase on Ashlen's website months after the Facebook ad was posted. The ads by Kentesh Ltd, Moderny.co and Goodysee were also published on Facebook and featured similar claims relating to the closing of a collection. All collections referred to in these ads were similarly still available months after the ad under review was posted.
The ASA challenged whether the claim that a collection was being discontinued was misleading and whether the failure to include a closing date for the promotion in the ad breached CAP Code rules. Only Kentesh Ltd responded to the ASA's enquiries.
The ASA considered that claiming that a collection or product range was closing down or running out was misleading as consumers would understand that the collection or product range would no longer be available and would pressure consumers into thinking they need to complete the purchase before they become unavailable. The ASA also determined that closing down dates and the duration of the promotion were material information that would likely influence a consumer's decision regarding the promotion. The ruling made clear that closing down dates must be included in promotions unless the advertiser can demonstrate that the absence of the date in the ad would not disadvantage consumers.
- Date of ruling: 25 September 2024
This ruling concerned how options for membership were presented on the NOW TV website for their subscription streaming service, forming part of a piece of work by the ASA on online choice architecture. Consumers were presented with two subscription options: a "6 Month Saver" option with one-month free Boost and a "Fully Flexible" option which included a seven-day free trial of Cinema and Boost. Beneath each option was further writing in small text. For the "6 Month Saver" option, it stated "New Boost members only. After your 1 month free trial Boost auto-renews at £6 a month unless cancelled”. For the "Fully Flexible" option, it stated "After your 7 day free trial, membership auto-renews monthly at £9.99 for Cinema and £6 for Boost. Cancel anytime".
The ASA challenged whether the presentation of the options for membership was misleading as it appeared that the free trials were automatically added to the basket and would renew at a charge unless cancelled. Under the CAP Code rules, marketing communications must not mislead consumers by omitting significant conditions or presenting them ambiguously. For free trials in particular, the CAP Code rules provide that ads must make clear if a paid subscription will automatically renew after trial and the financial commitment of the subscription if it is not cancelled during the trial.
The ASA considered that the text of the subscription options ("1 month free Boost") did not make clear that the packages contained a free trial and whether the subscription would start automatically after the free trial ended or the financial commitments that would come with that. The ASA further considered that the presentation of the membership options, in particular the key information about automatic renewal after the conclusion of the free trial, was not immediately visible or sufficiently prominent to consumers when compared to other text on the page. The text was positioned at the bottom of the boxes which detailed the streaming packages, was smaller and less prominent, and was below the button consumers needed to click to proceed on their consumer journey, away from the reference to the trial. As such it was likely that consumers would overlook the significant conditions of the free trials. Subscription contracts and how they will be affected by the changes under the DMCC Act are covered more widely in our separate piece, here.
The ASA also considered the impact of online choice architecture in rulings against Nike and Oak Furniture Superstore. An ad by Nike for trainers was ruled as misleading as it did not clearly indicate that the trainers advertised in the promotion were for older children and that there were limited sizes available for adults at the promoted price. A promotion for Oak Furniture Superstore was misleading as it did not make clear that only certain products were included and also pressured consumers into make a purchase by suggesting that the promotion was time limited through the use of a countdown clock.
- Date of ruling: 23 October 2024
A duo of rulings on Webloyalty furthered the ASA's work on online choice architecture. The rulings focused on three webpages that were seen on the Complete Savings website that consumers were directed to after purchases from Argos, Trainline, and Papa John’s. The pages offered a "Welcome Reward" of £20.87 cashback and provided ways for consumers to sign up to collect their reward and have the cashback credited to their card.
The page that followed the Argos purchase page featured a grey box that contained further information on "Offer and Billing Details" and linked to the Terms of Service. The page that followed the Trainline purchase page stated that "Terms and Conditions Apply" and underneath this stated, "by signing up for all the cashback rewards of Complete Savings […] FREE for the first 30 days and only £18 per month thereafter." Three other similar cashback ads in connection to purchases through Domino's Pizza, Moonpig and Asda were reviewed by the ASA in a parallel Webloyalty ruling issued on the same day. All three of these ads featured a clickable button labelled "Continue" followed by smaller text which read "By tapping above, you can join our partner programme for £18/month and claim your reward".
Money Saving Expert challenged the ads for the cashback rewards connected to Argos, Trainline and Papa John's on the basis that the ads were misleading as it appeared that the reward was only available after the consumer had completed additional steps. The cashback reward ads in relation to Domino's Pizza, Moonpig and Asda were challenged on the grounds that the presentation of the options at the conclusion of payment were unclear.
In both rulings, the ASA upheld the complaints. The ASA considered that the consumer encountered the ads at the checkout page of the relevant retailer when the consumer's order was being confirmed and finalised. As such, it considered that the offer of the cashback appeared to be a reward in connection with the purchase of the main product and not connected to a third-party programme that required a paid subscription. It determined that consumers would conclude that they had already fulfilled the requirements to receive the cashback offer through their purchase. Moreover, the placement of the ad at the end of the transaction gave the misleading impression to consumers that they needed to click through to the ad to complete the transaction (as consumers would look for visual clues to determine how to proceed on a webpage). This misleading impression was compounded by the presence of a large "Continue" button on the ads connected to purchases from Domino's Pizza, Moonpig and Asda.
Additionally, while some of the ads referenced receiving the reward "on the next booking" and mentioned signing up for the Complete Savings Membership, the ASA considered that the prominent display of text on the clickable buttons such as "get my £20.87 cashback" and "YES!" (in relation to receiving the cashback) made the text easy to overlook and added to the impression that clicking the button and completing the form would allow the consumer to receive their reward without additional obligations. The qualifying text was also in small font and at the bottom of the page, making it easy to overlook as consumers were required to scroll down the ad to see the information.
The ASA concluded that it was not made sufficiently clear to consumers that they were required to apply for the reward and that there were additional obligations connected to receiving it, such as signing up to a membership or completing a second purchase. The ads were considered to be misleading as they gave the overall impression that consumers had fulfilled the requirements and could receive a free reward.
- Date of ruling: 9 October 2024
The ASA investigated the way mid-contract price changes are advertised in the broadband and telecommunications space. This investigation covered an ad by O2 on its website for three different data plans. Bold text at the top of the webpage advertising the plans stated that the monthly price would increase each April, beginning in April 2025 ("Monthly price of your Airtime Plan will increase each April from April 2025 by the Retail Price Index rate of inflation announced in February each year plus 3.9%").
Details about each of the advertised data plans was underneath and included information about upfront and monthly fees followed by a symbol. The information about the price increase remained pinned to the top of the webpage on a banner as users scrolled through different data plan options. At the bottom of the webpage was the symbol that had appeared by the fees accompanied by a statement ("Monthly price of your Airtime Plan will increase each April from April 2025 by the Retail Price Index rate of inflation announced in February each year plus 3.9%. If RPI is negative, we’ll only apply 3.9%. Find out more information at o2.co.uk/prices.") The complainant challenged whether the way this information was presented was misleading.
The ASA noted that CAP guidance states that mid-contract price increase details are material information necessary for consumers to make informed decisions and so must be presented clearly and prominently. Additionally, CAP guidance provides that, where additional information is provided by asterisk or links more than one step below the price claim, adequate weight is unlikely to be given to the significance of the information.
The ASA found that, while there was some indication of future price increases at the top of the page, the pinned banner was the same colour as the rest of the page and so blended into the background. In addition, the information in the banner was not sufficiently close to the relevant price/package and so lacked sufficient prominence. Lastly, it was not sufficiently clear that the monthly prices advertised would increase before the end of the contract period.
The detailed qualifications regarding the mid-contract price increases were located at the bottom of the page and not in the main body of text advertising the data plans. Because crucial information about mid-contract price rises was not prominently displayed or clearly associated with the individual data plan prices, the ASA considered that this information could easily be overlooked. The ASA concluded that because mid-contract price increase details were not presented clearly enough, consumers could be misled.
The ASA reached similar conclusions on the advertising of mid-contract price changes in their rulings against BT, EE, Virgin Media, TalkTalk and Plusnet.
- Date of ruling: 18 September 2024
The ASA's ruling on CBDLife UK formed a wider piece of work by the ASA that focused on ads which made claims that CBD (cannabidiol) was suitable for consumption by children. The ad by CBDLife UK and another by Excite For Life Ltd were identified following intelligence gathered by the ASA.
Complaints were made in relation to CBDLife UK's website as it made claims regarding the suitability of CBD food products for children and the recommended daily consumption limits of CBD. The website stated that there was no age restriction under UK law on the consumption of CBD and claimed as a result that children could take CBD gummies. The website also advised that "per FSA guidance we do not recommend consuming more than 70mg of CBD a day".
The ASA determined that, implying that there is no age restriction on the consumption of CBD by children misled consumers and was contrary to guidance by the Food Standards Authority (FSA). Further, the ASA considered that consumers would believe that CBDLife UK's statements were in line with up-to-date official guidance from regulatory authorities such as the FSA. However, both the claims conflicted with the most recent FSA position and referred to outdated maximum consumption levels. As a result, both claims were misleading and in breach of CAP Code rules.
ASA Ruling on Dataverse Co. Limited t/a Gamehaus
- Date of ruling: 25 September 2024
Three social media ads for Dataverse that promoted the social casino game apps "Grand Cash Casino Slots" and "Double Win Slots Casino" were identified for investigation by the ASA. The ads featured statements such as "Get the real Vegas experience and become a billionaire overnight with grand cash casino slots" and "experience real life Vegas casinos from home and become a billionaire overnight" and showed a player's bank account increasing from $215.89 to $5,477.55 accompanied with the statement "my bank account went from looking like this to this, just by playing Double Win Slots Casino instead of wasting my real money at casinos." The ASA challenged whether the ads misleadingly suggested that players could win real-world money or tangible prizes.
The ASA determined Dataverse's social casino apps imitated slot machines but did not offer real-money payouts, classifying them as non-gambling products despite the fact the ads offered in-game purchase options. Two of the ads featured gameplay similar to traditional slots with terms like “huge welcome bonus” and references to becoming a billionaire overnight, misleadingly suggesting potential monetary gains. The third ad depicted bank account increases alongside gameplay footage, reinforcing the misconception of winning real money.
The ASA noted that references to Vegas experiences further implied gambling association as it could be understood that the game was similar to traditional slot machines and possible to win real world money. The ASA did not consider that it was sufficient to say that the game was free to play to overcome the impression that real money or prizes could be win by playing the game. Real money was also referenced in one of the app names (“Grand Cash Casino Slots”) which furthered the misleading impression. The ASA considered that, without clear disclaimers about the virtual nature of the winnings from these games, these elements collectively misled consumers into believing they could win withdrawable money or tangible prizes.
This ruling was one of five rulings that the ASA published on paid-for gambling-like ads and formed part of a wider piece of work identified for investigation by the ASA. The other rulings concerned ads by Billionaire Casino, Cash Tornado, Ignite Classic Slots and SpinX Games Ltd. Other elements that the ASA considered added to the misleading impression that real money or tangible prizes could be won included gameplay footage (eg slot machines) depicted in realistic or animated style, sound effects, the use of gambling terminology, the use of prize terminology and the depiction of coins. Throughout the rulings, the ASA concluded that ads for gambling-like apps should clearly state (via adequately sized font, size, placement and duration) that the in-game rewards in these apps do not equate to real money or tangible prizes.
- Date of ruling: 6 November 2024
This ruling concerned two ads by Eurostar on Instagram and Facebook which promoted tickets for trains from London to Amsterdam and Brussels. The ads prompted consumers to "Book now" for £39 tickets each way noting that "T&Cs apply." The ads received complaints that challenged whether the ads were misleading because they exaggerated the availability of the advertised tickets and did not provide significant information.
The complaints were upheld. The ASA found insufficient evidence that a significant proportion of tickets were available at £39 during the bookable period or promotion duration. The ASA considered that it was Eurostar's responsibility to demonstrate that the advertised price did not exaggerate the availability or number of benefits that the consumer could obtain. However, historical data provided to the ASA only reflected sold tickets, not the availability of tickets at the promotional prices, and did not substantiate Eurostar's claims.
Furthermore, the ads did not specify applicable travel dates directly within them, requiring consumers to click through multiple steps to find this information on the landing page. When the landing page was reached, the relevant information was located at the bottom of the page and consumers were required to click further to reveal the dates the tickets were available. The ASA determined that the material information was not immediately visible or prominent and was therefore misleading. The ads also exaggerated the availability of the promoted tickets and were therefore misleading.
