Marketing Matters: August 2023

Welcome to the first edition of Marketing Matters, where we look at advertising and marketing (A&M) trends in the Retail and Consumer sector. We focus primarily on the activity of the Advertising Standards Authority (ASA) and the Competition and Markets Authority (CMA) and highlight some of the key topics to be aware of in the A&M space.

In this month's edition we look at:

• Key takeaways from this month's ASA rulings for A&M departments
• Important topics from the ASA's perspective
• A review of the CMA's activity for August

ASA rulings – key takeaways for your A&M departments

This month, the Advertising Standards Authority (ASA) handed down 34 rulings. We have picked out some of the main trends from these rulings to inform your Advertising and Marketing (A&M) team of things to be aware of when they are creating content:

Misleading claims

Out of the marketing types the ASA found to be in breach of the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the CAP Code), misleading claims were by far the highest, appearing as an issue in 11 of the 34 rulings. So, what types of misleading advertising did the ASA pick up on this month?

A press ad for a heater product was held to be misleading, as it promised to save customers a fortune on energy bills, as well as suggesting that stock was low and therefore consumers should hurry to purchase it. The ad was found to be misleading on both fronts, after taking a view from the Energy Saving Trust and requesting evidence from the company in support of its claims.

In another ruling, a press ad for a holiday home development (as opposed to a residential development) incorporated wording that suggested that a home was up for sale, accessible 365 days a year, when this was not in fact that case. The advert was for a holiday home and was not available all year round.

A final claim worth highlighting is the 6G Internet Ltd ruling which also made its way into UK news headlines. The main issue in this case was the name of the company, which suggested 6G internet and devices already existed, which is not the case. Some of the wording in the company's ads included wording such as "better broadband", which gave the impression that their broadband might be better than the current 5G. The ASA found both the name and the ads to be misleading under the CAP Code.

Unsubstantiated claims

Unsubstantiated claims made up eight of the ASA rulings for August. In the optical space, two businesses were held to have fallen foul of the CAP Code's rules on unsubstantiated claims with one suggesting their contact lenses could change a person's eye colour, while the other was likely to lead customers to believe that their optical lenses could help treat dyslexia. There was no evidence to back up the claims and, as such, they were found to be both unsubstantiated and misleading.

The marketing of two acupuncture businesses and a craniosacral therapist suggested they could help treat the symptoms of long Covid, while there was no evidence to that effect. The rulings can be found here, here and here.

The last claim we have considered related to an online display ad, a website and two paid-for Facebook posts for a whisky cask investment company, which made various claims about the suitability and efficacy of whisky investment and the returns to be gained from this type of investment. The complaint in relation to misleading and unsubstantiated claims – particularly in relation to the claims about investment returns – was upheld on all of the four grounds upon which the ad was challenged.

Irresponsible advertising

This type of marketing also made up eight of the 34 ASA rulings last month. The first of the claims we have looked at related to a company issuing a paid-for Facebook ad which was found by the ASA to be irresponsible by suggesting that drinking rum is a suitable alternative to a therapist (for pirates who do not have access to one on the open seas). Although the intention was to be light-hearted and humorous, it was nonetheless found to be socially irresponsible and in breach of the CAP Code.

Many of the other claims in this category related to gambling ads, forming part of a wider piece of work by the ASA banning gambling ads which, under strengthened rules, are prohibited from being likely to be of strong appeal to under-18s. The ASA's Active Ad Monitoring AI system helped identify these ads. Specifically, the businesses issued tweets which made reference to tennis and football stars, which the ASA considered to be high risk and would likely appeal to people under 18 and therefore, they were in breach of the CAP Code.

In addition to the above, one ad was held in breach for seemingly glamourising smoking and including a person who looked under 25 in an advert in which alcohol played a significant part, while another included a woman who looked under 18 being portrayed in a sexual way.

Lastly, a set of vodka ads telling the story of the 'Vodfather' and his cronies was held to be irresponsible due to them showing and referring to aggressive behaviour and linking alcohol with tough and daring people and behaviour, while they also linked alcohol to illicit drugs.

Other types of claim worth noting

Among the rulings were a couple of ads that fell foul of the CAP Code for failing to identify themselves as marketing communications, including a tweet by rock star Ozzy Osbourne who was promoting the Sony PlayStation virtual reality headset. Another concerned a booking app for hair and beauty businesses containing 'recommended' businesses, without mentioning this being marketing communications, on the basis that the recommended businesses paid to be listed as 'recommended' on the app.

A couple of urgency claims – something the CMA has been very busy cracking down on (for more on this topic, see our recent article) – made their way onto the list. One of these was the heater ruling discussed above, while the other concerned making claims for boiler grants that were seemingly (though not actually) endorsed by the UK government.

Takeaways

The key takeaways from the ASA rulings this month are:

• Make sure to double check that your marketing is not misleading – put yourself in the shoes of the consumer: would they come to a different conclusion as to what the ad is promising based on the wording used?

• Be responsible – think twice about including content that would appeal to under-18s, where gambling and alcohol is involved. Consider the talent taking part in the marketing materials and make sure they are not and do not look under-age when promoting things like alcohol.

• Make it clear that marketing communications are involved – more on this in the next section.

• Back yourself – make sure that your claims can be backed up with evidence. If you are not doing this already, now is the time to start.

What's trending at the ASA right now?

During the month of August, the ASA have been focussing on misleading claims and marketing communications which, as is evident from the rulings, appears to be an ongoing issue.

In its article entitled "Why it pays to #ad", the ASA sets out the importance of ensuring that where marketing communications are involved, it is crucial that consumers are able to tell that they are dealing with a marketing communication. The use of #ad in communications has become readily accepted and recommended for when influencers are promoting a company or their products. The ASA has set out comprehensive guidance for influencers making clear that ads are ads.

Misleading imagery in ads has also been looked at, with the main guidance being to ensure that customers are not misled by any imagery in relation to what they will actually receive (example: a burger on a plate – will the consumer be getting the burger and plate or just the burger?), that a product's efficacy is not exaggerated and when advertising games, representative gameplay must be representative of the actual gameplay – if it is not, this should be clearly identifiable.

AI has obviously also been an important topic with the last few months dominated by ChatGBT and its fellow AI engines. The ASA have written a piece on how AI-generated marketing will come under its microscope where the generated content falls under its rules and scope. The usual suspects come up as guidance for those in marketing using AI to generate content: do not exaggerate the product's efficacy, watch out for inherent biases and double-check everything before it goes live. If not, the individual as well as the company could end up in trouble.

Finally, in light of the issues with irresponsible advertising in the gambling space, the ASA have provided some guidance for betting companies to avoid falling foul of their obligations. It is important that any marketing is socially responsible, does not strongly appeal to those under 18 and that young people should not appear in the ads. And if there are relevant terms and conditions, make sure they are clear.

It will be important for A&M departments familiarise themselves with the ASA's guidance and make sure processes are in place to ensure their content does not fall foul of the current rules.

CMA activity – what are the key A&M stories from the CMA this month?

Compared to the ASA, the CMA have been a bit quieter in August, after a strong push against urgency and misleading pricing claims in previous months.

The key stories this month include stories about petrol stations working with the CMA to develop a scheme that will allow people to compare live fuel prices online and avoid unfair competition when it comes to higher fuel prices resulting from the invasion of Ukraine.

Providers offering will-writing, so-called 'quickie' online divorces, and pre-paid probate services have found themselves under the microscope of the CMA. It launched a consumer enforcement investigation to protect consumers following complaints about the above services and this month, it has been tweeting about it, calling for customer experiences as part of the investigation.

Towards the end of the month, the CMA raised concerns over the housing market, stating that landlords may be breaching consumer protection legislation. This comes amid the watchdog looking into land held by some of the large UK housebuilders, as part of an investigation that commenced in February into the private rental and housebuilding sectors.

Businesses operating in the above spaces will do well to inform themselves of any initiatives and ongoing investigations to ensure that action is taken to stay within the rules set out by the CMA.