Marketing Matters | Review of June 2024

Welcome to this month's edition of Marketing Matters, where we look at advertising and marketing (A&M) trends in the retail and consumer sector.

We will be looking at:

• Some of the key takeaways for A&M departments following June's ASA's rulings
• Other ASA top stories
• CMA news for the same period.

ASA rulings – key takeaways for your A&M departments

In June, of the 14 rulings the ASA issued, only one was not upheld, whilst one was partially upheld.

Misleading advertising

The majority of this month's ASA rulings related to misleading adverts. Below, we examine a few examples of these cases.

A manufacturer of vehicle dash cams was challenged over a claim made on their website that their “enhanced night vision” models were “capable of picking up the finer details such as number plates and road signs even in extreme low-light conditions”. This was complemented with an image showing a dash cam view of a motorway at night, with legible number plates on the cars ahead.

In response, the manufacturer explained there were variables such as speed, light, rain and window cleanliness which could reduce the dash cam visibility; they also admitted to inserting fake numbers into the ad's image to avoid vehicle identification.

The ASA also reviewed footage provided by the manufacturer to determine if the quality matched the quality of the footage advertised. The clip demonstrated that finer details were readable at slower speeds, but number plates were not as clear as in the ad's image when the vehicle was travelling at speeds above 30 miles per hour.

The ASA's ruling deemed it likely that consumers would understand the accompanying image to be footage directly taken from the named dash cam models and thus representative of their performance on a vehicle travelling on the motorway.

Meanwhile, other rulings concerned the advertisement of health and beauty products. A dermatology company claimed to sell a home beauty device "100 x more effective than LED masks and able to turn back the aging clock, transforming skin in weeks, in your own home”.

The ASA considered consumers would understand the claim to the product was the strongest and most effective device for treating the visible signs of aging on the market. However, there was not reliable data to substantiate this claim of superior efficacy and thus it was found to be misleading. Whereas a wellness platform promoting its 28-day "Calisthenic Challenge" was held to have mislead consumers that they could obtain a similar physique to the actor in their advert within 28 days of starting the fitness programme, which was untrue without substantial exercise and a change of diet.

Other claims worth noting

A natural deodorant retailer published a social media post featuring an image of a deodorant product with green, red, and black packaging called ‘Mynx’. The caption stated “£733 million is wasted on unwanted gifts each year. So, what do you think to a sustainable alternative to the UK’s top Christmas selling gift set?" This same post was reposted by the retailer's CEO and founder on LinkedIn. Unilever UK Ltd, who owns and manufactures Lynx deodorant products, challenged whether the ads discredited their product. Any advert making a comparison with an identifiable competitor must objectively compare material and verifiable features. The 'Mynx' branding was almost identical to Lynx branding whilst the derogatory term "unwanted" implied the Lynx products were of a lower value and less desirable.

Issues relating to the promotion of nicotine products online increased this month with the ASA handing down three rulings relating to E-Cigarettes. The ASA warned that business' selling e-cigarettes and associated products need to be cautious that their advertisements do not breach the legislative ban contained in the Tobacco and Related Products Regulations 2016 (TRPR).

Two retailers fell foul of the rules when it came to promoting food treatments and supplements which stated or implied to treat, alleviate, or cure symptoms of menopause or perimenopause. Health claims in ads must be clearly attributed to the specific nutrient named in the authorised claim to reflect its full meaning.

Adverts claimed, “Around 2-8 weeks after my first capsule, I already had extra room in my pants" and “I have an energy level like you can’t imagine". With bloating, mood swings, hot flushes, and brain fog all common symptoms of menopause, the ASA considered these were claims to treat or cure such symptoms of the menopause without actually attributing the nutrient or medicine which led to such results, and instructed these to be taken down.

Takeaways

The key takeaways from the ASA rulings this month are:

• Ensuring accuracy and authenticity in adverts – Misleading or exaggerated claims about, or depictions of, product functionality can lead to ASA intervention. Ensure you do not overpromise the performance of your product in your marketing.

• Substantiate health claims – If a health or beauty product promises anti-ageing or transformative effects, this needs to be backed by reliable data.

• Be careful with your comparisons – In the ASA's book, there's a thin line between what might be considered a harmless joke aimed at a competitor and an advert mocking and disparaging a rival product. When promoting your products, stay clear of mimicking other retailer's branding to stay protected.

Top ASA stories last month

Navigating the rules of electric car advertising

With an increased number of electric and hybrid vehicles (EVs) on the roads, clarity is key in ensuring consumers are not misled as to how such vehicles actually work. Advertisers are advised to distinguish between Electric Vehicles or Battery Electric Vehicles (EVs or BEVs), Hybrid Electric Vehicles (HEVs), Mild Hybrid Electric Vehicles (MHEVs), and plug-in hybrid vehicles (PHEVs) and to be clear on a vehicle's primary source of power.

Within the greater sphere of green claims, claims of 'zero emissions' will be deemed acceptable for EVs with no diesel or petrol engine provided this specifically relates only to the driving experience, and not the charging process. Meanwhile, the ASA has warned that broader claims that 'electric vehicles are better for the environment' imply a vehicle has a net benefit across its lifetime on the environment which is unlikely to be untrue.

For further guidance, take a look at Motoring: Hybrid and Electric vehicles, Motoring: Zero emissions claims and CAP’s Advertising Guidance on misleading environmental claims. 

Injecting truth into Botox Advertising Rules

Botox, and other brands of Botulinum Toxin, is a prescription only medicine and that means it can’t be advertised to the public in any media. Recently, the ASA has identified an increase in the number of direct and indirect references to Botox in adverts, particularly through social media, and has released guidance on how to comply with the applicable rules.

Advertisers need to be careful they do not advertise Botox treatment through promotions, competition prizes, or even hashtags to the public. Using medical professionals or celebrities to endorse these products will still fall foul of these rules. The ASA has also specified that adverts should not prey on women's insecurities around their looks and perpetuate harmful gender stereotypes about ageing "gracefully".

When marketing Botox, advertisers need to ensure they are directly promoting their products to healthcare professionals in closed form communications. Meanwhile, clinics and pharmacies need to ensure they provide factual information about their products and services to customers and promote consultations to ensure they are fully satisfied the treatment is suitable for their needs.

To read more on Botox products, visit the ASA's website.

CMA activity in June

Scampi scrutiny

The CMA has been asked to investigate the sustainability of scampi sourcing by charity, Open Seas. Open Seas disputes that "extensive damage" is caused from trawling the seabed with heavy nets when catching langoustines for scampi. Resultingly, other marine life is negatively impacted and often caught and wastefully discarded in the process. They claim it is a breach of CMA guidance for supermarkets to describe scampi as 'sustainably sourced' when "the way scampi is produced has all the hallmarks of an irresponsible fishery."

Pet-ition power: Growing scrutiny of high pet fees

As discussed in last month's Marketing Matters, the CMA is investigating claims of vet fees growing at an alarming rate leaving pet owners out of pocket. More than 80,000 people have now signed a petition calling for Parliament to regulate veterinary services and ensure more transparent vet bills. Meanwhile, the CMA found that more than 80% of veterinary practise websites they reviewed, did not list pricing information.