Sustainability claims, as always, must be substantiated
Two online travel agency ads were flagged by the ASA's AI ad monitoring and were investigated for potentially misleading claims about sustainability. The first ad described Puerto Rico as "a sustainable destination," while the second ad promoted "sustainable trips." The ASA challenged whether these claims were misleading, as they implied that the destinations and trips offered by eDreams were environmentally sustainable.
The advertiser argued that the term "sustainable destination" referred to the destination's efforts in environmental conservation and eco-friendly practices, not the environmental impact of traveling to the destination. They provided criteria for assessing sustainability, including official certifications, adherence to sustainability guidelines, and offering eco-friendly tourism experiences.
Both complaints were upheld. The ASA considered that the claims were ambiguous and unclear, as neither ad was qualified to explain the basis of the absolute claim “sustainable”. It ruled that the advertiser did not provide sufficient evidence to support the claims that Puerto Rico as a destination, and their trips there, were not environmentally damaging, and so the ads were likely to mislead consumers about the environmental impact of their travel services. (Vacaciones eDreams, S.L., 8 January 2025)
Run promotions fairly
A complaint challenging whether a promotion had been administered fairly when the prize supplier's brother won. The original terms and conditions of the promotion excluded employees of the promoter, "employees of agents or suppliers of the Promoter, who are professionally connected with the competition or its administration" and "members of the immediate families or households" from entering. The ASA considered that the exclusion in the terms and conditions would prevent family members of the prize provider from taking part.
The fact the promoter argued that the winner had been chosen by a randomised number generator on social media is a moot point because the individual should not have been included in the draw.
The ASA emphasised that removing the exclusion from the terms and conditions retrospectively, so that the brother was allowed to keep the prize, was not a fair or honourable way to treat participants, as required by the CAP Code. The fact that the terms allowed the advertiser to change them was not in and of itself enough to negate its responsibility to administer promotions fairly and avoid causing unnecessary disappointment. (Royalux Competitions Ltd, 15 January 2025)
Make sure the price in the ad matches the product in the ad
The ASA found the ad in breach of the CAP Code for showing a full-size 100ml bottle of perfume with the claim "ONLY £4.95" when the 100ml bottle of perfume shown in the ad cost £26.95 and the 5ml sample was £4.95. The advertiser responded that the price should have been described as a "from" price, however, even if using a "from" price to indicate the starting price of a range of products, the product depicted needs to be at the price stated. So even if the ad had stated "from", it still would have been considered misleading. Therefore, the ASA found the price claim misleading. (The Essence Vault Ltd, 15 January 2025)
ASA rules against another laser eye surgery referral company…
This ASA ruling is in addition to the previous rulings regarding laser eye surgery referral companies. In the previous rulings, the ASA ruled against a number of ads for not making it immediately clear that the advertisers were principally lead generation companies that connected consumers with laser eye surgery providers, and instead suggested they provided treatment directly, as well as ruling against certain claims.
This ruling also concerned the content of the claims themselves.The ASA found claims within two ads to be misleading, and had exaggerated the capability of LASIK treatment: “Get Permanent Freedom with LASIK”, “No Side Effects”, “Safe & Effective” and “Perfect Vision is Possible”.
The ASA ruled that the ad was misleading since it did not make clear the content that the ad linked through to. When the ad was clicked on, it went through to a landing page that included subheadings of "Eye Surgery to Correct Vision Cost", "Lasik Plus Surgery Cost", "Lasik Around Me" and "Optical Examination" and not to information about LASIK surgery from specific practices which was implied. (Health Line, 22 January 2025)
…and another rehabilitation referral company
Following on from previous rulings against rehabilitation referral companies for implying they were acting for purposes outside of their business, the ASA has found another rehabilitation referral company in breach of the CAP code for the same reason, as well as for the ad being misleading.
On the basis that "During the recovery process in our rehabilitation centre, we implement numerous treatment methods" and similar claims would be understood by consumers to mean that the advertiser provided treatment directly at clinics they operated or owned, the ASA considered the ad implied it was acting for purposes outside of its business and its commercial intent was not made clear. Even though the website contained information outlining that they did not offer specific health advice and that they passed details of customers to partner organisations who could provide treatment, the location of that information, at the foot of the webpage, meant the ASA considered it was likely to be overlooked.
The ad was also considered misleading because the link "All listings" and the links to specific pages for counties did not contain specific details of private rehabilitation centres that could be accessed by Compare Rehab in the locality as was implied by claims such as "Find Addiction Treatment in your area".
Again, this ad was investigated as part of a wider project into rehabilitation clinic referral companies sparked by complaints from the Ethical Marketing Campaign for Addiction Treatment.
(Marren Healthcare Ltd, 8 January 2025)
Think about the principal focus of your ads
Some rules apply regardless of whether the ad is for the product or simply features the product. Two ads for menswear products involved a groom and seven groomsmen either smoking or holding cigars. Although the ASA acknowledged the ad was for menswear products, it considered that smoking was the ad's principal focus because it was the only activity being undertaken.
The ASA ruled the ad breached rule 1.3, which states that marketing must be with a sense of responsibility to consumers and to society on the basis it presented smoking in an appealing manner and suggested that it was part of a glamourous and aspirational lifestyle.
There were also further breaches of the CAP Code because the ad was not obviously identifiable as a marketing communication. (Endrick Clothing Ltd, 8 January 2025)
ASA will take into account the cultural significance of national symbols when considering the potential for offence
The ASA investigated six posters by an online Halal investment platform, seen on various Transport for London services, which featured images of burning US dollar and Euro banknotes with slogans like "Join the Money Revolution" and "Withdraw from Exploitation". Seventy-five complainants challenged whether the ads were offensive, particularly to those who view their national currency as culturally significant.
The advertiser explained that the ads were designed to be thought-provoking and illustrate the concept that money growing at a rate lower than inflation loses value, akin to "going up in flames". They argued that the ads were not offensive but rather aimed to educate consumers about financial inequality and ethical investment options available through their platform.
The ASA acknowledged the intention behind the approach, but ultimately determined that the ads breached the CAP Code in terms of harm and offence. Although the ads had not explicitly criticised a specific group and did not include Sterling banknotes, it was considered the burning of banknotes would have caused serious offence to some viewers, particularly people from the US or Eurozone countries who see their currency as a symbol of national identity. The ASA also took into account that the ads were in an untargeted medium and concluded that the images of burning banknotes were likely to cause serious offence to some viewers. Interestingly, the ads had been reviewed by the CAP Copy advice team which had advised that it was unlikely to raise issues under the CAP Code. (Wahed Invest Ltd, 8 January 2025)
Ensure qualifying text is sufficiently robust
An ad offering financial investment training courses was challenged, which featured an individual asking, "How do you become the first millionaire in your family?" and displayed text stating "START WITH $20" alongside a screen-recording of a bank account balance increasing in real-time. The ad also showed well-known logos with "INVEST" buttons and a student claiming to have turned $20 into $9741. The ad included wording stating, "Prosperi, as a learning platform, does not provide any investment or financial advice. Your capital may be at risk".
The ASA upheld all three points of the complaint, which challenged whether the investment return claims were misleading and substantiated, whether the ad made clear the risks involved in investment, and whether it irresponsibly took advantage of consumers' inexperience. They concluded the ad could mislead consumers into believing they could achieve high investment returns with minimal input and without understanding the associated risks. The ASA also commented that the text regarding risk was in a small font placed at the bottom of the ad, partially obscured by a sponsored pop-up, and therefore likely to be overlooked. (Zimran Ltd, 15 January 2025)
Ensure qualifying text is sufficiently prominent
Another ruling found the use of a disclaimer to be insufficient to avoid misleading consumers. The ASA upheld a complaint against an advertiser's website that claimed that tinted glasses could help adults with blinding headlights when driving at night. The claim was linked to information advising users to check the DVLA advice on tinted glasses while driving. The complainant argued the claim was irresponsible and potentially misleading, as wearing tinted glasses at night could breach the Highway Code.
Visual Stress explained their filters were categorised according to guidelines from The Federation of Manufacturing Opticians, with categories 0 to 2 being suitable for driving, and only non-yellow category 0 filters being appropriate for night driving. They stated they did not provide individual category 3 or 4 filters, which are unsuitable for driving. The ASA sought advice from the College of Optometrists as to whether the specific transmission meter used by the manufacturer could grade their lenses to legally comply with the relevant International Organisation for Standardisation guidance. The College indicated that the meter could not confirm that the lenses met all legal requirements for road use, including night-time driving.
The ASA therefore understood that only category 0 lenses are legal for night-time driving, and concluded that the claim was misleading and could potentially encourage unsafe driving practices. The text advising consumers to check the DVLA advice did not sufficiently counteract the impression that the lenses were generally permissible for driving at night. (Visual Stress Consultancy Ltd, 29 January 2025)
How to mitigate these risks
- Avoid exaggerating the capabilities and outcomes of medical treatments
- Clearly disclose the commercial intent behind referral services
- Be able to substantiate and qualify environmental claims
- Financial investment ads must make clear that the value of investments is variable
- Ensure small print qualifies rather than contradicts and is sufficiently robust and prominent
- Do not exploit consumers' inexperience and credulity
- Do call your friendly neighbourhood advertising and consumer products lawyer to get help with the above.
Please contact our authors Katharine Mason or Dominic Watkins if you have any queries or need legal advice.
