The Advertising Standards Authority (ASA) published 25 rulings in October.  As always, 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.

ASA rules creatine claims exaggerated

A paid-for social media ad for a creatine monohydrate product was ruled by the ASA to stray beyond the health claims for creatine listed as authorised on the Great Britain Nutrition and Health Claims Register (GB NHC Register). Only claims authorised on the GB NHC Register are permitted in marketing communications, and any such claims must be supported by documentary evidence. Currently, the GB NHC Register lists two authorised claims for creatine only:

1. “Daily creatine consumption can enhance the effect of resistance training on muscle strength in adults over the age of 55.”
2. “Creatine increases physical performance in successive bursts of short-term, high intensity exercise.”

The ASA acknowledged that there is some flexibility in how authorised claims may be re-stated, provided the re-stated wording carries the same likely meaning for consumers. However, the ASA did not consider that “Clinically backed to support muscle strength” preserved the same meaning as either of the authorised claims as it did not make clear the limitations to adults over 55 and the specific type of exercise which the claims referred to. Other claims such as “Creatine fuels the muscle your protein can’t build alone”, in conjunction with “FROM PANCAKE TO PEACH”, and a before-and-after illustration depicting a “more shapely” bottom were ruled not to have the same meaning for consumers as the authorised claims and exaggerated the effect of creatine, in breach of the Code.

ASA rulings reiterate restrictions on prescription-only medicines

Ads relating to GLP-1s, classed as prescription only medicines (POMs), have been on the radar for both the ASA and the Medicines and Healthcare products Regulatory Authority (MHRA), given the growth of this market. In September, the ASA upheld complaints about ads which breached the rule that prescription-only medicines and treatments cannot be advertised to the public. In addition, some advertisers had made marketing communications about specific medicines which had not, at the time of publication, received Marketing Authorisation from the MHRA.

In assessing complaints, the ASA considered the ads as a whole. For example, it took into account that one ad featured an image of a grey, pen-shaped medical product, and another made generic claims of weight-loss alongside offering discounts on the cost of these medicines. Drawing on its own research into the likely consumer understanding of such ads, the ASA ruled that an image of a weight-loss injector was a strong indicator that the product was a POM.

The ASA further looked beyond the generic terms used and, despite no GLP-1s being named in the initial search ad, ruled that consumers would have interpreted the references made, taken together, as meaning that an offer for a POM was being made. The ASA assessed the ‘consumer journey’ in each case, paying close attention to the MHRA’s own guidance on how non-promotional information about POMs may be provided to the public, as well as directly seeking a view from the statutory regulator. In both instances, the MHRA noted that because the website directed consumers along a journey that led to a page featuring a named POM, the ads were likely to lead consumers down a “discrete path” guiding them to the use of POMs. The ASA followed the same reasoning to rule against the ads.

The ASA also found that two further ads which had made medicinal claims for, and promoted, unlicensed products in social media advertising breached the CAP Code. This was on the basis that both ads related to medicines which had not received Marketing Authorisation at the time of publication (by nine days and 10 days respectively) as well as advertising a POM to the public which is prohibited in all circumstances.

Advertorial ruled misleading without substantiation

A paid-for social media ad and accompanying website advertised a dishwasher capsule in the form of an apparently independent article reviewing and comparing different products. The ads were challenged on the basis that the advertiser’s commercial intent was unclear. The ASA considered that the ads failed to identify themselves as marketing communications advertising the advertiser's own product and flagged that including an advertorial label at the foot of the webpage was insufficient. The ASA also ruled that the comparative and health-related claims made (including that using “big-name dishwasher brands” could lead to “Toxic Load Build-Up” and “Reproductive Issues”) were misleading and had not been substantiated.

AI gambling app ruled irresponsible 

An ad promoting an app which purported to utilise AI to predict football match outcomes with a “97% accuracy rate” by analysing thousands of football datapoints in seconds was ruled non-compliant on the basis of being misleading and irresponsible. In particular, the ad failed to reference the possibility of tipping losers or losing money, while simultaneously giving the impression that consumers would be able to make “informed” gambling decisions in order to make a profit from gambling on football matches.

The advertiser also breached the CAP Code by failing to reply to the ASA. In these circumstances, the ASA will refer advertisers to the CAP compliance team who will consider the sanctions available to it and progress the matter accordingly.

Staying with gambling, an ad for an affiliate comparison website which the ASA considered had the effect of promoting online betting sites and bookmakers was ruled socially irresponsible because it was displayed to a user who had searched the phrase “self exclusion bookies”. The ASA noted that someone searching on this basis was likely to be seeking information, advice and support about how to prevent their exposure to gambling services, so an ad for online betting sites was not appropriate. The ASA considered that targeting controls had not been sufficiently robust to prevent the ad from being shown to potentially vulnerable consumers.