Marketing Matters | Review of February 2024

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.

We will be looking at:

• The rulings handed down by the ASA in February and key takeaways for A&M departments.
• What else the ASA has been up to last month.
• The CMA's February activity.

ASA rulings – key takeaways for your A&M departments

In February, the ASA handed down 20 rulings. Three complaints were not upheld, while one was only partly upheld. Below we set out some of the ones we consider to be of most interest to A&M departments.

Misleading claims

Misleading advertising remained at the top of the ASA's hitlist in February with five out of the 17 upheld rulings being considered likely to mislead consumers. So, where did advertisers go wrong this time?

A technology company got caught out for sending an email to customers which included wording saying "get 10% off all products". This was then qualified by an asterisk and smaller text which stated that the discount only applied to "certain products". Given that that statement was in clear conflict with discount wording, this was not deemed to be acceptable as it was misleading to consumers and in obvious breach of the CAP Code. The ASA also expressed some dissatisfaction with the company's lack of substantive response to their initial correspondence.

The Greater London Authority released a radio ad which stated that “according to research, one of the most polluted places in London is inside your car”. Unfortunately, the authority was unable to substantiate their claim. The ASA noted that "a direct comparison between the level of air pollution within a car in London to a variety of other locations and contexts around London had not been made." The point was that drivers were likely to be more at risk of air pollution in their own car as opposed to, say, using public transport, but this was not made clear enough. The ad was therefore not sufficiently clear.

Irresponsible advertising

Irresponsible advertising came in joint second place (tied with the breaches discussed in the next section) to the misleading ones with four rulings being considered socially irresponsible and potentially harmful to consumers. Some key highlights below:

Once again, an ad for a mobile game app has gone down the wrong path in relation to socially responsible advertising. An ad seen on YouTube essentially showed a story of a man who admired a slim woman out of his window before berating his partner who was depicted as overweight and messy. The classic recipe for sexualisation and objectification of women, as well as gender stereotypes and body shaming, was not taken lightly by the ASA who found it in breach of advertising rules. And one should hope so too!

Otherwise, a couple of rulings (here) and (here) formed part of a wider piece of work the ASA has been doing, which is focussed on loans offered around Christmas time and the importance of ensuring that such ads are socially responsible.

Environmental claims and lack of qualification

As mentioned, environmental claims (and thereto-linked qualification issues) were on the rise in February with companies not taking sufficient care when making environmental statements. Among others, the ASA looked at the following:

Two rulings (here) and (here) dealt with car manufacturers beefing up the capability of their electric and hybrid vehicles. Both rulings concerned paid-for Google ads where the companies made a statement saying that their cars produce "zero emissions." "Well, what's wrong with that?" we hear you ask. "Do these vehicles actually produce emissions?" Not when they are being driven, but when they are plugged in and charging, unfortunately, they do. So, the statement that zero emissions are produced was misleading in the eyes of the ASA and therefore in breach of the CAP Code.

Another rather lengthy ruling in this space concerned a London public transport company. Here, five complaints were made about different ads concerning the expansion of the Ultra Low Emission Zone (ULEZ) in London to the Greater London Areas.

Three of the five claims were not upheld, relating to statements about London having an air quality problem, how the expansion of the ULEZ will help clear London's air and reported links between air pollution and the development of dementia. These were statements properly made and backed up.

However, the two claims that were upheld had issues with the qualification of their statements, which suggested that the ULEZ had reduced nitrogen dioxide (NO2) levels by half (the issues involved the methodology involved in calculating the figure of 46%), as well as how the company had come to the conclusion that "most air pollution related deaths" occurred in "Outer London" (the latter area not having been officially defined).

This ruling is interesting, as it shows the level of scrutiny companies will come under when making environmental statements. Although the company in question brought several reports to the ASA's attention and appeared to have done its homework, it still was not enough to get around the qualification point on two of the five claims.

Other types of claims to be aware of

Other than the above, a couple of claims centred around alcohol, such as a racing game company offering a "drink driver package" (perhaps not the best image to promote), as well as a beverages company's ad suggesting that finishing work early is good for getting to the "good parts of life" (in this case, drinking bourbon). As one can only imagine, the ASA was not overly enamoured by the ads, finding both in breach of the rules.

Otherwise, promotions were a topic that came up a few times in February as well, with the ASA finding that a prize promotion for a beauty calendar was actually based on laws of chance and not all entrants would be included in the draw. It was therefore administered unfairly and omitted significant promotion conditions, in breach of the CAP Code.

Takeaways

The key takeaways from the ASA rulings this month are:

• Qualify your green claims – We recently did an article on the rise of green claims and it may be worth A&M departments taking a look and ensuring that they are fully up to date with the requirements around environmental statements.

• Watch out for conflicting wording – Double-check that any discounts are linked to the specific products to which they apply and take care not to make sweeping statements.

• "The good parts of life" – Be particularly careful when it comes to advertising alcohol that your ads do not glorify drinking. It can be a slippery slope.

Top ASA stories last month

Time to put a CAP on irresponsible cosmetic surgery ads

You may recall, a few months back, we noted that the ASA handed down several rulings relating to adverts for cosmetic surgery abroad. Well, after several instances of "unreasonable delays" (often meaning no responses to the ASA's enquiries whatsoever), the Committee for Advertising Practice (CAP) has issued an Enforcement Notice to cosmetic surgery providers abroad, urging them to ensure their advertising is socially responsible and in line with UK advertising standards.

The notice sets out advertising guidance to these providers, as well as the specific rules they need to be aware of, and threatens sanctions, should these not be complied with going forward. The key things the ASA picked up on in their previous rulings were issues with making potential risks of surgery clear, trivialising the surgery itself and making misleading claims about both the safety and credentials of surgeons.

No more fraud!

In February, the ASA announced its support for the government's anti-fraud campaign entitled "Stop! Think Fraud". With scams on the rise and fraud being the most common crime in the UK, the ASA and government have emphasised the importance on cracking down on this behaviour and reporting cases of online scams, so that those behind them can be held accountable.

The campaign itself involves several counter-fraud experts, such as the National Crime Agency and National Cyber Security Centre. Advice and support will be available to consumers in the hope of reducing the success of the fraudsters. Despite not regulating scams in ads, the ASA have still had a "Scam Ad Alert System" in place since 2020, which sends alerts to online platforms where these scams may have surfaced, so the individual platforms can take appropriate action to remove any offending content.

CMA activity in February

Infant formula – the CMA is getting the microscope ready

On 20 February, the CMA launched a market study into the supply of infant formula in the UK, meaning that the "CMA will now be able to use its compulsory information gathering powers, rather than rely on firms providing information voluntarily." As reported in previous editions, the infant formula market has been of particular interest to the CMA, due to the high prices involved at a time where consumers are struggling with an ongoing cost-of-living crisis.

The intention is to publish the findings from the study in September this year and any recommendations to the government coming out of the study will have formal status. The study will also be gathering further evidence in relation to e.g. consumer behaviour, the information required for consumers and supply-side market features.