Keep the comparison clear and specific
An example of a compliant comparative ad this week with Sainsbury's complaint against Tesco's loyalty points comparison ad not being upheld. Sainsbury's complained that the comparison was misleading and implied an overall superiority of Clubcard compared to Nectar, which they did not believe to be the case. The ASA noted that the ad specifically referred to the value of Sainsbury's Nectar points and Tesco Clubcard points when it came to redeeming the points themselves, and specifically that 100 points would be converted to 50p and £1 respectively. The ad didn't reference other aspects of the loyalty programmes within the headline claim. The small print gave further qualifying information about the conversion. The ASA considered that this information clarified the overall impression of the ad; that Clubcard points were worth twice the value of Nectar points when converting the same to spend on groceries, and that the comparison was based on their usual conversions, and excluded any additional, time-limited offers. To put it another way, the ad kept the claim clear and specific and didn't allow for a wider claim to be implied or extrapolated. (Tesco Stores Ltd, 12 February 2025)
The value of investments is variable
A trio of property related rulings were picked up by the ASA AI Ad monitoring system, and although the advertisers, products and approaches were different, in each case the required warning that investments can go down as well as up had not been included. The advertisers were also unable to substantiate return claims such as “Up to £83,454 over two years guaranteed return”, "[t]his can look like anywhere from £100,000 worth of profits up to half a million pounds worth of profits" and "10-30% ROI". These rulings serve as a reminder that even if the product isn't regulated by the Financial Conduct Authority, there are still rules in the Ad Codes to follow.
(Luxury Lodge Estates Company Ltd, Land Profits EDU Ltd, Connect UK Sales Ltd 12 February 2025)
Private e-scooters can't be used in public
It's always interesting to take note of the complainant in an ASA ruling. In this case, it was Wiltshire Council that complained against an ad for e-scooters which it considered to be misleading for implying privately owned electric scooters could be used in public when this is in fact illegal. The TV ad made references to public spaces such as the "local park" and did not include any information on the restrictions which apply to e-scooters (and other powered transporters). The fact that the majority of e-scooters can only be used on private land (which the public cannot access) with permission of the landowner was considered material information - the omission of which was misleading. There are specific exemptions to this which relate to e-scooters which are available for public rental under specific licences. (Wilton Bradley Ltd t/a Xootz, 12 February 2025)
Be clear on the limits of your claim
The trade association for cosmetic products, the Cosmetic Toiletry and Perfumery Association (CTPA) complained against a webpage which made claims that products were safe to use by people who are allergic to para-phenylenediamine (PPD). The CTPA was concerned that the products contained paratoluene diamine sulfate (toulene-2,5 diamine sulfate) which could cause allergic reactions to people with an allergy to PPD. Although the ad did include some caveats, the ASA considered the combination of the wording of the claims and the frequency of their repetition, combined with the name ColourSafe would cause consumers to understand that there was very little risk of the hair colourants causing an allergic reaction in consumers with allergies to PPD or other allergens. (INSTITUTO NATURVITA S.L. t/a Natur Vital 12 February 2025)
Don't irresponsibly encourage borrowing
The ASA ruled against an ad for a “rent-to-own” credit broker for encouraging people to spend more than they could afford on non-essential and costly items at Christmas by taking out credit agreements. The advertiser showed they undertook affordability checks and other procedures in place, but as always with the ASA the key point was the implication made by the ad rather than the service of product itself. Given that consumers would have to pay interest on what was borrowed, whilst the ASA considered that the ad encouraged consumers to use credit agreements to overspend at Christmas, the ASA ruled it in breach.
In a starker example, an ad which said "Black Friday is here, and so are the deals – but are you financially ready?" was ruled non-compliant for encouraging consumers to borrow money to make the most of Black Friday promotions. The ad trivialised the consequences of borrowing via the visuals and claims such as it would be "easy" to pay off. (Family Vision Ltd, SteadyPay Ltd 12 February 2025)
Hold evidence for all claims
An ad which claimed "So cheap you’ll think it’s a scam…" was ruled misleading because the advertiser held no evidence for the saving claims in the ad and misleadingly represented star ratings as being from Trustpilot when they were from the advertiser's own customer review page. (Banquist Ltd t/a Winedrops, 5 February 2025)
How to mitigate these risks
- Don't omit material information regarding the legality of your product
- Check whether any regulatory requirements apply
- Think about the claim all the way through to the end
- Review your ad with a fresh eye to avoid unintended interpretations
- 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.
