Marketing Matters: October 2023

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

In this month's edition we look at:

• The ASA's rulings in October and what they could mean for your A&M departments
• Top ASA stories over the previous month
• A&M-related CMA activity

ASA rulings – key takeaways for your A&M departments

This month, the ASA has handed down 24 rulings, with all of them being upheld (only one was partially upheld). Below we've summarised some of the key rulings to flag to your A&M departments over the coming month.

Misleading claims

Several advertisements were found to have breached the CAP Code last month, due to their misleading nature. So, what did they do wrong?

Two rulings (here and here) against the same company, concerning two different mobile app games, found that the use of 'random-item purchasing' (a.k.a. 'loot boxes') as part of in-app purchases were not made sufficiently clear in the apps' descriptions. The ASA considered the presence of loot boxes to be material information for customers (particularly, those with vulnerabilities) and therefore the games were in breach of the CAP Code.

Another ruling dealt with a TV ad for a minted commemorative coin depicting Princess Diana, “minted in 1/200 ounce 24-carat gold.” The complainant had queried whether the coin could exclusively have been made of 24-carat gold or whether this was misleading. Although this was indeed the case, the ASA found, separately, that "the coin’s atypical thinness was material information regarding the product’s main characteristics which was likely to affect a consumer’s transactional decision. In the absence of any such information, the ad implied that the coin took the form of a typical 40 mm coin when that was not the case." As such, the ad was misleading and in breach of the Broadcast Advertising Code.

Irresponsible / harmful and/or offensive advertising

Irresponsible marketing dropped down to six rulings in October, down from 10 the previous month. Notwithstanding this apparent improvement, it still ended up as the second most-in-breach type of advertising and, sadly, this month also saw some disturbing developments in marketing techniques, which the ASA considered to be harmful and/or offensive to consumers.

One of these was an in-game ad for a mobile app game called "Love Paradise – Merge Makeover." It showed the story of two pregnant women, one of which was depicted (and described) as 'ugly' and (according to the game) therefore unworthy. The ad included a scenario where, when arriving at hospital, only one of the women could be cared for and it was suggested that the 'prettier one' should be saved. There were further suggestions of bullying and assault against the woman being targeted in the game's storyline. In its ruling, the ASA stated: "We concluded that the ad contained harmful gender stereotypes regarding physical appearance, condoned violence and was irresponsible and offensive. The ad appeared to present scenarios of bullying with the purpose of entertaining viewers and made light of and normalised assault."       

Another ruling concerned an Instagram post which involved a black-hooded figure shooting a pink-coated mannequin to pieces with several highly destructive guns (a semi-automatic rifle, a pistol and a shotgun). There were a couple of concerns with this ad. Firstly, the black vs. pink seemed to suggest (if not condone) violence against women, while it also appeared that the ad glamourised firearms and violence, particularly because of the damage caused to the pink-coated mannequin. As such, the ad was deemed potentially irresponsible and harmful and in breach of the CAP Code.

Unsubstantiated claims

Four of the rulings dealt with unsubstantiated claims, one of which concerned a paid-for Instagram post about an AI app that could improve image quality. Unfortunately, when asked for evidence to support the claims made, not only did the company not provide any evidence, it did not reply to the ASA at all. As such, it was not difficult for the ASA to find the ad in breach of the CAP Code.

Other types of claim worth noting

This month, the ASA made a couple of rulings relating to environmental claims, something that has been expected for a while now, given their (and the CMA's) goals of clamping down on 'greenwashing' set out back in February.

In the environmental space, a Spanish multinational energy and petrochemical company got caught out for a paid-for online display ad seen on the Financial Times website and in the FT's digital energy newsletter, which featured an image of a water droplet with text stating “Renewable hydrogen, another alternative to reduce emissions." The ad was complained of, because information about the company's business activities (and their effect on the environment) was omitted.

The CAP Code states that unqualified environmental claims could mislead if they omit significant information. The ASA considered various things, including whether the target audience (which was likely to include investors) would know that renewable hydrogen was in its infancy and not yet commercially available. They also looked at the company's emissions data and the fact that their renewable hydrogen production had not in fact started yet – this was due to start in 2024. Further, the company was still investing in oil and gas exploration and the oil and gas side of the business was at the time of the ad considerably larger than its net zero activity.

Another environmental ad, posted on TV, relating to a car company not being sufficiently clear when it came to the actual fuel source of the advertised vehicle. Further, the ad focused heavily on electricity (despite the car also being powered by a petrol engine) and this would likely have the effect that consumers would think the car is better for the environment. Due to the lack of clarity on its fuel source, it was uncertain whether this is true.

Takeaways

The key takeaways from the ASA rulings this month are:

• Clarity is top priority – As has been a theme previously, it is crucial that ads are clear and not misleading. Watch out for pricing claims that might give the wrong impression and where consumers would benefit from certain (material) information, it is better to err on the side of caution than to risk breaching the advertising codes.

• Think before you speak – Think carefully about what your ads are saying. Make sure that any hint of discrimination, bullying or unfair stereotypes are as far from your marketing material as possible. Your customers are likely to thank you for it!

• Watch your imagery – Similar to the point above: consider your imagery. Could it be signifying something you should perhaps reconsider?

• To green or not to green? – Watch out when 'greening' up your advertising. The ASA (and CMA) will take a dim view of anything that looks to them as 'greenwashing'.

Top ASA stories for October

The ASA have been busy preparing for the upcoming sale seasons (yes, we are talking about Black Friday and Cyber Monday!). They have also provided some useful information about claims around recycling efforts, as well as what should be borne in mind when making delivery claims.

We are sale-ing…

In its article "Top Tips for Black Friday and Cyber Monday Promotions", the ASA sets out some useful guidance for retailers looking to benefit from these top calendar events, including:

• Making sure savings claims are genuine;

• Being careful to clearly identify which products are on sale. It's no good saying "all" or "everything" if this is not actually the case;

• Ensuring that sales don't continue beyond their closing date; and

• Assessing the likely demand for their products and communicating in a timely fashion to consumers if stock is running low

The article provides additional tips well worth reading for anyone ramping up their marketing efforts ahead of Black Friday and Cyber Monday. We previously did a piece on urgency and pricing claims which may also be of interest to readers of Marketing Matters and this can be found here.

Time to make recycling claims?

16 to 22 October marked this year's Recycle Week and to celebrate this, the ASA set out some useful pointers when it comes to promoting recycling efforts. Here are the key takeaways for your A&M departments:

• Ensure that any claims are supported by evidence.

• It is not okay to say your products are "100% recycled" if that is not truly the case.

• Recyclability of a product should not be exaggerated, nor should any material information be omitted.

Stand and deliver!

In light of the fast-approaching Black Friday and Cyber Monday sales, the ASA has set out further guidance in relation to delivery claims. Summarised below are a few useful tips to avoid ending up under the microscope this year:

• When you tell consumers that products will be delivered "Next Day" they will see that as, literally, the next day after ordering and not the day after shipping.

• As is to be expected, delivery claims must be clear and accurate. It is also worth remembering that delivery information is considered material information, so do make sure they are not misleading or omit anything important.

• It will be considered misleading if delivery charges have been inflated – i.e. if delivery is higher than the actual cost of postage, that will be a no-no. This also comes into the realm of honesty and fairness, so it is important to get it right.

CMA activity last month

Not a lot to report from the CMA in the A&M space for October. However, one story did stand out and links in with the environmental claims ruled on by the ASA and discussed above.

Here we go (green) again

Worcester Bosch, the heating and hot water products manufacturer, has come under scrutiny by the CMA over concerns that "it may be misleading shoppers in its marketing of boilers as ‘hydrogen-blend ready’" and making "confusing or inaccurate green claims in the advertising and labelling of its boiler products."

If the company's marketing claims regarding its so-called 'hydrogen-blend ready' boilers are likely to make consumers think that the boilers are more environmentally friendly than they actually are, Worcester Bosch could end up in the CMA's bad books.

The CMA has had its sights on the green heating sector for some time and apart from Worcester Bosch, 12 other businesses selling similar boilers have received letters from the CMA to warn them that their marketing may be in breach of consumer protection legislation.

The investigation will focus on potentially misleading labels regarding boiler fuel, claims about the use of hydrogen for home heating (despite the lack of availability as yet) and statements around the environmental benefits of this type of heater.

For those keen on the environment, this will be one to watch. For those making environmental claims, it will definitely be one to learn from.