Humour isn't a sufficient reason for using stereotypes that could harm
A "Luxury Dating" website was found to breach the rules on avoiding harmful stereotypes, when the ASA found it to have portrayed sexist and negative gender stereotypes in its ad. The Advertiser noted the ad had been written and directed by women, and that the intention had been to make a humorous representation of their dating service by making men, who were typically overrepresented on dating sites, feel prized.
The ASA considered that the video of four young women in bikinis chasing down a fully dressed grey haired man on the beach, and lines such as "where successful men go to date beautiful women", perpetuated stereotypes that men held value due to intelligence and business success, whereas women held value as objects due to their physical appearance. The ad also reinforced the stereotype that young, attractive women wanted to date older, successful men because of their wealth and status. (W8 Tech Cyprus Ltd, 16 October 2024)
Nature of cash-back loyalty programmes must be clear from the ad
Two rulings highlight the ongoing work the ASA is undertaking on online choice architecture, where issues are identified for investigation following complaints received and intelligence gathered by the ASA.
A series of ads for Webloyalty popped up in retailer apps and on retailer websites after check-out had completed. In each case, wording to the effect of “Your order is complete. £20.87 cash back! Tap here to claim the above reward, credited onto your card, when you next place an order at [Retailer]!” was displayed. In some cases, there were additional claims regarding a 30 day free trial. The ads were complained about/challenged on the basis that the presentation of the options at conclusion of payment was unclear. In particular, consumers needed to take a number of extra steps before being able to claim any cash-back.
The ASA's starting point was to assess how the average consumer, who (in law is) reasonably well-informed and reasonably observant and circumspect, would be likely to view the ad. In detailed rulings the ASA found that the ads misled for one of more of the following:
- failing to make clear the pop up was a third party ad
- implying that the amount of cashback was specific to the consumer
- not making clear that it was a third party loyalty scheme rather than the retailer's loyalty scheme
- omitting the fact that the loyalty programme was a paid for subscription service
- not presenting the choices in a sufficiently clear manner
- failing to make clear the extent of the commitment to take advantage of the "free" offer
- omitting an indication that an additional purchase was necessary to claim the offer
(Webloyalty website ruling, Webloyalty apps ruling, 23 October 2024)
Ensure significant terms are included in promotions marketing
As well as needing to ensure that ads include the key terms of a promotion, promoters have a general obligation under the CAP Code not to cause unnecessary disappointment.
A food delivery service that offered a £12 voucher to customers who made an order worth £20 within a specific period was ruled to have breached the rules, because it didn't provide the voucher within the promised timeframe and wasn't clear on the terms of the offer. There was an inconsistency between what the ad implied (£20 spend in total) and how the system calculated the spend (£20 on food only), which meant there was a delay on vouchers being released while the system was changed to calculate eligibility based on total spend.
A separate ad which offered 20% discount for selected restaurants and contained a link that directed consumers to restaurants, which were not included in the offer, was found to cause unnecessary disappointment. (Just-Eat.co.uk Ltd, 23 October 2024)
Risk to brands of affiliate links goes further than labelling the content as an ad
Following on from previous rulings where the ASA has ruled against the brand, even when an influencer has used an affiliate link without the brand's knowledge, the ASA has ruled against a supermarket after an influencer linked to its infant formula web page. By law, infant formula cannot be advertised to the public and the CAP Code reflects this. The retailer said they could not block affiliates from generating links to products on their website from a technical perspective and it looks they relied on contractual provisions to flag compliance obligations.
This emphasises the point we made previously, that brands working with affiliate intermediaries should ensure that the intermediary understands the brand's responsibilities for affiliate content, and as far as possible, ensures any influencers creating content using the links understand their obligations. In this instance the influencer didn't know advertising infant formula is prohibited. The ad ought to have been clearly labelled as an ad, but this point was moot given its content meant it should not have been run. (Sainsbury's Supermarkets Ltd, 16 October 2024)
Hold evidence for prices
Prices advertised need to be genuine and must include non-optional charges. Ads for flights where advertised prices did not match the prices available at booking were found to be misleading and in breach of the CAP Code for failing to including all potential fees and surcharges. The advertiser's response, that as a travel agent they did not provide flights themselves and their website did not update in real time, was not accepted by the ASA in light of the fact the website contained no information as to when the prices were last checked, and the advertiser was unable to provide evidence the prices had been accurate at any point. Ensuring prices are genuine is only going to get more important once the DMCC Act comes into force next year. (Trav Expert Ltd, 16 October 2024)
How to mitigate these risks
- Keep up to date with new guidance and expectations
- Ensure all claims are accurate
- If prices cannot be kept up to date in real time, ensure this is made clear
- Do not underestimate the risk from unruly affiliate advertisers
- Ensure significant terms and conditions are stated in the ad
- Do call your friendly neighbourhood advertising and consumer products lawyer to get help with the above
