The Advertising Standards Authority (ASA) published 32 rulings in July. As ever, the rulings assessed compliance under The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) and The UK Code of Broadcast Advertising (BCAP Code). Browne Jacobson’s advertising team have read them all and selected some we think you need to know about and of course, one for fun.

A trio of telecommunications ads rulings

Odds on if you refer to a company by name and then make a reference to their customers being subjected to a future 'price rise rip-off' they’ll challenge the claim. A direct marketing email for a broadband provider which advertised a refer a friend promotion to its existing customers on the basis of saving their friends from a competitor’s price hikes was found to breach the CAP Code because the advertiser was unable to show that price increases were going to occur and therefore made misleading claims about an identifiable competitor. 

A digital poster ad exhorting consumers to switch to the “UK’s fastest growing broadband provider” caught the attention of two competitors who disputed that the claim was accurate and challenged that the ad failed to include information to allow consumers to verify the claim for themselves. The competitors argued that the “fastest growing” claim was misleading because they understood it was based on figures which included customers moving between brands in the same company group. The advertiser was able to provide evidence to the ASA which showed that at the time the ad ran, the advertiser had achieved the highest customer growth in the sector, and this was still the case when internal group movements were excluded. This element of the complaints was refused.

However, the claim applied to the whole market and therefore the rules on claims against identifiable competitors applied. This meant that in addition to being substantiated, the claim needed to be verifiable. The ASA ruled that, because the ad did not initially link to any relevant verification information, and the document that was later added initially contained insufficient information to understand the nature of the comparison, the verification requirement had not been met. This element of the complaints was upheld.

A website page promoting “unlimited data” deals was ruled non-compliant with the CAP Code because the ad did not make the terms of its Fair Usage Policy (FUP) clear. CAP Guidance is that “unlimited” claims are acceptable even where a FUP applies as long as a legitimate user did not incur additional charges or suspension of service as a consequence of exceeding any usage threshold associated with a FUP. However it also notes that significant limitations imposed by the provider should be explained in the marketing communication. Although information was available about the usage cap, the ASA ruled having to click on “The legal bit” to learn that a 500GB personal usage cap applied to data usage, did not meet the requirement for qualifications to be presented clearly and therefore the ad was misleading.

More rulings on HFSS foods which are categorised as LHF

There were a number of rulings on whether ads were in breach of the restrictions on advertising 'less healthy' foods this month. Enough to write a separate article on the decisions in this area since the restrictions came in to force in January - see our deep dive.

ASA’s prescription-only medicines project is not letting up on weight-loss ads 

The ASA investigated a social media ad which referred to “prescription treatments” and ruled it in breach of the CAP Code for promoting prescription-only medicines (POMs) to the public. Referencing the Medicines and Healthcare products Regulatory Agency’s (MHRA) guidance on advertising medicines, 'The Blue Guide', the ASA also ruled that because the landing pages linked to from the ads, via a filtering page or an age gate, referenced POMs, the ads promoted POMs to the public. The Blue Guide notes that links and navigation aids may be given for particular conditions and diseases but may not be specific to POMs. Non-promotional information on specific medicines may be provided if it’s presented in the context of a fair overview of the treatment options.

The ASA challenged ads by the same company which implied they were from an independent review site, thereby indicating that the marketer was acting for purposes outside its business and did not make clear their commercial intent and for advertising POMs to the public and ruled against the advertiser on both points.

The ASA is also receiving complaints regarding this issue, for example a social media ad was ruled in breach of the CAP Code because clicking on the ad provided information about POMs rather than information about particular conditions and diseases. The advertisers argued they intended to promote a weight management service and the consumer journey was not a simple click-through from the ad to content which referred to POMs. However, the ASA considered that although there was a filtering page between the ad and the landing page, the landing page directly referenced POMs by name and therefore advertised POMs to the public which is prohibited, rendering the initial ads non-compliant. 

Staying on topic, a food supplement company’s ad for a patch was ruled misleading for claiming it had the same effects as GLP-1 agonist medication and making medicinal claims without a marketing authorisation. It was also ruled socially irresponsible for targeting breastfeeding mothers with weight loss claims.

ASA project on carbon offsetting claims in the air travel sector

Over the years we’ve seen a few ads for airlines making environmental claims that went too far and the fact there’s a dedicated project shows that it’s still an area where the ASA remains vigilant. The ASA’s Active Ad Monitoring system flagged ads on LinkedIn for an airline which claimed “bulk offset the carbon emissions for your past and future flights” and “Travel consciously by offsetting your flight’s carbon footprint”. Another airline’s paid for search ads claimed: “Travel […] more eco-friendly [sic] thanks to […] CO2-compensation. Travel climate-consciously by offsetting up to 100% of your carbon emissions per flight”. 

In the first ruling the advertiser was able to show evidence of a carbon offsetting programme, but did not satisfy the ASA that the carbon emissions from specific past or future flights booked would be fully offset through the scheme or that the environmental impact of the flights was reduced. Similarly, the other airline did not provide evidence that the consumers could fully offset the emissions from specific flights booked thereby reducing the environmental impact of their flight.

We’ve written guidance on the legal requirements for making green claims in UK advertising and CAP has produced a checklist for complying with the Ad Codes. 

And finally… we triple checked but coffee doesn’t make you live longer

To make a health claim about a food or drink, it needs to be listed as authorised on the GB Nutrition and Health Claims register and the same applies to nutrition claims. The register lists the specific authorised health claims and if the goal is to make a general, non-specific claim, there needs to be a specific authorised claim to accompany it. Food advertising is heavily regulated, and there’s extremely little scope for using puffery.

A coffee brand which made claims that “coffee isn’t just waking you up by giving you energy, it’s buying you time, it’s protecting your DNA, it’s slowing down aging at the cellular level” and that drinking the right coffee could add five years to a person’s lifespan was ruled to breach the CAP Code because there were no relevant authorised claims for coffee products and included unauthorised nutrition claims for antioxidants and polyphenols.