More is more when ensuring commercial relationships are made clear
Ads for Zoe and for Huel were ruled misleading for failing to make a commercial relationship clear. In both cases the entrepreneur Steven Bartlett was featured whilst discussing the benefits of the product. The ASA accepted it was clear that the content was advertising, and that there would some sort of relationship, but the fact that he was an investor in the companies, rather than someone who was engaged to promote the product, was considered material to consumers’ understanding of the ad and relevant in making an informed decision about the product. Although the Zoe ruling doesn't mention it, in the Huel ruling the ASA made the point that although consumers might have thought that the ads were part of a commercial relationship with Steven Bartlett, many consumers were unlikely to understand from the ads that Mr Bartlett had a financial interest in Huel’s performance. So the ASA considered that this additional layer of commercial connection needed to be clear. It's going to be an interesting challenge going forward because brands considering featuring people in their ads who have a connection beyond being paid to be in the ad are going to have to consider whether or not the average consumer (as interpreted by the ASA) will already know the individual is an investor, CEO, cofounder etc or whether this information needs to be shared. (Huel Ltd, Zoe Ltd 14 August 2024)
Animation doesn't necessarily mean appealing to under 18s
A TV commercial for cider which featured cartoons was ruled not to strongly appeal to under 18s by virtue of the fact that the cultural references used within the ad which featured an adaptation of the song "Straight Outta Compton" were synonymous with a specific era of hip hop, particularly the 1980s and 1990s which were considered to hold nostalgic value for those who grew up during that time and that they would not resonate with younger audiences. (Aston Manor Ltd, 14 August 2024)
Statements which could cause fear and distress must be justified
Email marketing from a water filter company, referred to a cryptosporidium contamination in Brixham, Devon, and promoted their water filter product as a necessary solution. The ad included text stating: “Hi all, 100 people have fallen ill in Devon now. We can't standby [sic] and watch this happen. […] We have made Water2 just £99 today. USE CODE: URGENT at checkout […]" The complainant challenged whether the ad was misleading, irresponsible, and caused unjustified fear and distress.
The ASA was not persuded by the advertiser's response that it aimed to raise awareness about the poor quality of UK drinking water, using the Brixham incident as an example and that its ad was factually correct and intended to make their product more accessible to those affected by the contamination. It ruled that the ad exaggerated the health risks of UK drinking water. “UK tap water is broken” was found to imply that the system was no longer fit for purpose or working as it should. The contamination in Brixham was a temporary and localised issue, and the ad’s urgent tone and alarmist language suggested a widespread problem across the UK. Therefore the ASA concluded that the ad was likely to cause fear and distress without justifiable reason and was misleading and irresponsible. (Gelcard Ltd, 31 July 2024)
Savings claims must be substantiated against the usual selling price of the products
A Debenhams social media ad made claims to save "up to 60% off" fashion, home, and beauty products featured a carousel of images with different products and a “Shop now” link. The complainant challenged whether the claim was misleading, as not all products featured in the ad were available at the advertised discounted price. The advertiser responded that because third-party suppliers decided whether to participate in promotions, they could not control if certain products were excluded. They also stated that they could not obtain relevant sales data due to 'legal reasons'. The ASA found that consumers would understand the claim to mean that the products featured in the ad were included in the promotion and discounted by up to 60%. The ASA noted that only one of the three product listings shared by the complainant had a promotional price applied. The other two listings did not show any indication of a discount. Without evidence that the products were available at the advertised discount, the ASA considered the claim misleading and breached the CAP Code. It's a cornerstone of compliance that advertisers need to be able to share evidence they hold with the ASA to substantiate claims, so if there is a contractual reason why the evidence cannot be released, an alternative approach will need to be considered. (Debenhams Brands Ltd, 31 July 2024)
To claim to be a local business, you must be a local business
Certain services will be more appealing to consumers if they are local to the consumer. Four websites advertising locksmith services were challenged for be misleading on this point. The websites for each of these locksmith services all claimed to be based at specific addresses and offered quick response times for emergency services. The ads gave the impression that the locksmiths were local traders and each ad featured a single address and phone number, with some including images of shop fronts or Google Maps pins to reinforce the impression of a physical presence. They also claimed to offer fast response times and emphasised their local service: “We’ve served the area for several years,” “Our local emergency Locksmiths aim to be with you within 30 minutes of your call where possible,” “Our aim is to resolve the situation as quickly as possible (30-minute fast response).”
Following a consumer complaint in relation to one website, the ASA raised challenges in relation to the others which seemed to have the same source. The ASA did not find any evidence that any of the locksmith businesses operated from the given addresses which were either residential homes or unrelated businesses. The websites were similarly designed and created by the same person, featuring identical testimonials attributed to different individuals, which raised concerns about the authenticity of the businesses and suggested that they were not genuine local locksmiths. The ASA upheld the complaint that the ads were misleading and could not be substantiated. The advertisers have since been referred to CAP compliance. Under the ASA and CAP procedures it's the CAP Compliance team which undertakes the work of escalating the sanctions which can be applied, so in this case it's like the ruling is just the start. (Gauge B-Ready Locks, Guardian Tech Locksmith Cranleigh, ApexCraft Locksmith Frimley and Alex the Locksmith West Molesey 31 July 2024).
When making environmental claims, bear in mind alternative interpretations
The ASA upheld complaints against a Virgin Atlantic radio ad that claimed their Flight 100 would be the first commercial airline to fly transatlantic on "100% sustainable aviation fuel" on the basis it was misleading in terms of the fuel’s environmental impact. Virgin Atlantic defended the ad, stating it was based on a UK Department for Transport competition, which they had won, to achieve "the first net zero transatlantic flight on an aircraft using 100% sustainable aviation fuel within one year". Virgin Atlantic explained that the flight aimed to demonstrate the feasibility of using 100% sustainable aviation fuel in commercial aircraft. The standards currently in place allowed only for a maximum of 50% sustainable aviation fuel to be used, blended with fossil derived fuel. Flight 100 demonstrated that sustainable aviation fuel could be used as a full replacement for fossil derived jet fuel in existing aircraft, supported by existing fuel infrastructure.
The advertiser argued consumers would understand the term “100% sustainable aviation fuel” in the context of the ad to be a reference to a type of fuel which was made from sustainable sources, rather than being fossil fuel based, and which reduced but did not necessarily completely eliminate greenhouse gases. They conducted surveys showing that most listeners (68%) understood the ad’s claim related to the proportion of sustainable aviation fuel used and recognised its environmental benefits compared to traditional jet fuel.
However, the ASA found that the ad could mislead consumers into thinking the fuel had no negative environmental impacts. While many listeners would understand from the ad that Flight 100 had, uniquely, flown transatlantic using only sustainable aviation fuel, a significant proportion would understand the claim “100% sustainable aviation fuel” to mean that the fuel used was 100% sustainable. It was therefore held that the ad omitted crucial information about the environmental impact of sustainable aviation fuel, leading consumers to overestimate its benefits. This included the absence of information which explained that sustainable aviation fuel produced reduced, but still significant, emissions over its full lifecycle, including in-flight emissions, and which explained the ways in which the fuel otherwise significantly adversely impacted the environment. The ASA considered that the ad created an impression of Virgin Atlantic’s commitment to reducing aviation’s environmental impact which would impact consumers' decisions, even though the flight referenced in the ad was a non-commercial flight. This ruling highlights the need to think about any alternative interpretations or inferences that could be made for a claim even or perhaps especially if using a term which is widely understood and recognised within a sector. (Virgin Atlantic Airways Ltd, 07 August 2024).
How to mitigate these risks
- Do remember no one knows your brand like you do
- Being clear on your target audience has multiple benefits
- Don't use alarmist messaging for commercial gain
- Remember terms that are common in your sector may not widely understood
- Do call your friendly neighbourhood advertising and consumer products lawyer to get help with the above
