ASA issues report on consumer understanding of environmental claims

The ASA has published its research into consumer understanding of environmental claims. The project identified two priorities for consumer research:

• consumer understanding of "carbon neutral" and "net zero" claims in advertising, and
• consumer understanding of common advertising claims for hybrid and electric vehicles.

Considering priority (i), the ASA identified a number of key findings, including that "carbon neutral" and "net zero" were the most commonly encountered environmental claims, but there was little consensus as to their meaning. The ASA plans to update its guidance in light of this research in order to clarify the meanings of these terms and will carry out a six-month monitoring period to assess the impact of the guidance.

In relation to priority (ii), the ASA identified that consumers were less able to understand new technologies and the difference between various hybrid options given the pace of change in the sector and the lack of reliable and straightforward information and guidance. Whilst the ASA is unable lawfully to mandate fixed definitions for terminology or technical specifications used to substantiate performance claims, it will share its research findings with the Government and the automotive industry.

CAP and BCAP interim statement on body image in advertising

The CAP and BCAP have published an interim statement following the call for evidence on body image issues in advertising. The call for evidence was published in a bid to understand the current evidence base surrounding the potential body image related harms from advertising and the potential detrimental impact of those harms on consumers, and whether these are adequately addressed by existing rules and guidance.

Overall, the ASA considered that the evidence received doesn't identify significant gaps in the current regulatory framework, which sets a range of general and specific restrictions to prevent ads from harmfully affecting how audience members see themselves physically and how they believe others see them physically.

Following the study, the ASA will be prioritising exploratory work in the following policy areas:

• the potential harms arising from digitally altered images in advertising and labelling as a possible intervention
• the potential harms arising from the depiction of muscularity in advertising, and
• the potential harms arising from the depiction of women from minority ethnic backgrounds in ads and whether new and unattainable body image ideals could be created.

CAP guidance on targeting age-restricted ads updated

The CAP has published new guidance for advertisers on how to target age-restricted ads responsibly online. The advertising rules place an emphasis on protecting children and young people from potentially harmful, irresponsible or inappropriate ads.

The new guidance provides principles-based checklists to help advertisers and their agencies to limit children and young peoples' exposure to age-restricted ads. CAP expects advertisers to consider the suitability of a range of tools – including those provided by platforms, publishers, media owners, intermediaries and other ad tech companies – to target their campaigns and ensure that other parties involved in developing and publishing a campaign are also aware of and follow the requirements of the audience targeting restrictions.

CMA investigates the use of urgency claims by the Emma Group

The CMA has opened an investigation into whether Emma Sleep has misled consumers by using countdown timers and claims about time limits to imply that a discounted price will end soon, when this may not be the case. This investigation marks the start of a new programme of consumer enforcement work focused on so-called ‘Online Choice Architecture’ aimed at tackling potentially harmful online selling practices, including pressure selling tactics such as urgent time limited claims.

The CMA's consumer enforcement programme will focus in particular on:

• urgency tactics such as countdown clocks, where sellers put pressure on shoppers to buy quickly, and
• eye-catching discount offers, such as ‘50% off’ claims, when the real price reduction may not be as great as claimed.

CMA investigates the disclosure of paid for endorsements on social media platforms

The CMA has published guidance for social media platforms, brands and content creators to follow so that people can easily spot a paid-for online endorsement.

The CMA's compliance principles to help social media platforms prevent and tackle hidden advertising outline what the CMA considers platforms should be doing to comply with consumer protection law and requires platforms to be proactive in tackling hidden advertising. The CMA has also updated the advice in its content creators and social media endorsements guidance on how to label commercial content to comply with consumer protection law. The guidance covers issues such as disclosing gifts, own-brand relationships and the importance of upfront, prominent disclosures when posting reels, stories or other video content. The CMA's business responsibility and social media endorsements guidance also sets out the CMA’s views on how brands that use content creators to advertise their products can comply with consumer protection law, and the steps brands should take to reduce the risk of hidden advertising.

DCMS issues final report on Online Advertising Programme

The Department for Digital, Culture, Media & Sport has published its final report on the Online Advertising Programme. The aim of the Programme is to review the regulatory framework of paid-for online advertising to tackle the lack of transparency and accountability across the whole supply chain. The review is being undertaken in conjunction with the measures being introduced through the forthcoming Online Safety Bill, as well as those the Government is developing to address competition and data protection issues across the online landscape.

The report identifies 15 categories of harmful advertising, with malicious and fraudulent or scam advertising being the most serious threats, based on an assessment of the incidence of these categories of harms and the severity of the impact caused to individuals or businesses affected. The report also considers the evolution of the landscape of harms over recent years, with ASA complaints relating to social influencer advertising having increased by 92% in 2021. Complaints about potentially harmful social display advertising have also grown, with ASA complaint cases increasing 54%.

Digital Services Act published in Official Journal

The EU's Digital Services Act has been published in the Official Journal and will come into force on 16 November 2022. Although most of the provisions won't apply until 17 February 2024, Articles 24(2-3 & 6), 33(3-6), 37(7), 40(13), 43 and Sections 4-6 of Chapter IV will apply immediately.

The DSA outlines obligations for online intermediaries and platforms to tackle illegal content, products and services, while promoting transparent advertising. Obligations differ according to the size and impact of the organisation and the nature of the service, with the most stringent provisions applying to services designated as Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs). 

In addition to the common requirement to clearly designate online advertising as such, providers of online platforms must provide information on the principle of the respective online advertisement. Furthermore, information has to be given as to the main parameters of how target groups are determined and, where applicable, how to change those parameters. The DSA also aims to prohibit profiling-based online advertising based on sensitive data (such as health data) and advertising aimed at minors.

Please see our overview here and more articles on the DSA here.

New rules protecting under-18s from gambling advertising now in force

New rules protecting under-18s from gambling adverts and related gambling harm, came into force on 1 October 2022. The ASA has published updated guidance along with a reminder of the new rules and suggested compliance processes. In particular, freely accessible ads cannot use:

• top flight footballers and footballers with a considerable following among under-18s on social media
• any sportspeople well known to under-18s, including those with a considerable social media following in that age group
• references to video game content and gameplay popular with under-18s
• stars from reality shows popular with under-18s.

CNIL fines Criteo €60m for unlawful targeted advertising and profiling

The CNIL has reportedly issued a preliminary notice of a €60m fine to adtech company Criteo. The CNIL reportedly intends to fine Criteo for GDPR violations related to unlawful targeted advertising and profiling. Criteo now has the right to make a written response before the CNIL issues a draft decision which will be subject to the Article 60 cooperation and consistency process.

ASA and CAP publish mid-year report for 2022

The ASA and CAP have published their mid-year report for 2022. The report highlights the ASA and CAP's progress against their objectives from January to June 2022 and previews the 2023 objectives. The ASA and CAP have hit most of their objectives so far, including securing the amendment or withdrawal of ads and reporting publicly, achieving customer satisfaction targets, and meeting the target of 97% of Formal Investigation cases enforced. According to the report, the ASA and CAP have so far failed to meet closure targets for complaint cases and Copy Advice cases, aims to achieve complaints casework productivity within 5% of 2021 levels, and expenditure falling within 97.5–100% of budget.

In 2023, the ASA and CAP plan to implement the final year of their 2019-2023 strategy – More Impact Online. Their ambition is to make every UK ad a responsible ad, to protect people and to help them, and for society and business to feel more able to trust advertising. They will continue to give a high priority to protecting children and the vulnerable, particularly given the cost-of-living crisis.  Objectives include using tech-assisted monitoring to improve the regulation of online ads, working with the government to address gaps in online advertising regulation, administering the Intermediary and Platform Principles (IPP) pilot, and continuing to make the case for effective advertising self- and co-regulation.