Marketing Matters | Review of January 2025

Welcome to the first 2025 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 November's ASA rulings.
• Other top ASA stories.
• CMA news for the same period.

ASA rulings – key takeaways for your A&M departments

In January, the ASA handed down nine rulings, we have highlighted some of the key rulings we think you and your A&M departments should be aware of.

The ASA continue to crack down on unsubstantiated green claims…this time, using AI

An online travel agency released two online display ads in June and July of 2024. The first featured an ariel shot of a jungle and text which stated "PUERTO RICO A sustainable destination". The second included "Discover our sustainable trips" as text in the advertisement. The ads were identified for investigation by the ASA following the receipt of intelligence gathered by their Active Ad Monitoring system, which uses AI to proactively search for and identify online ads which may be breaking the Code rules.

The ASA challenged both claims made in the ads. The company said they believed consumers would interpret the above claims as referring to the relevant destination's future economic, social and environmental impact, as it promoted environmental conservation and biodiversity and implemented eco-friendly practices. The travel agency emphasised that the claims related to the destination and did not cover the impact of reaching the destination, as they did not primarily sell package travel holidays (i.e. flights and hotels together). However, the company in question did not make this clear on their website.

Both ads were held to likely mislead consumers. Neither ad was qualified to explain the basis of the "sustainable" claim. Without this qualification, the ASA ruled that the claims were ambiguous and unclear.

Prize draws

A website advertised a prize draw for a £5,000 garden makeover and a further £2,000 cash. Terms and conditions (T&Cs), not specific to the garden makeover prize draw, appeared on a separate webpage. Under an "Eligibility" heading, the text stated “The competition is only open to all residents in the United Kingdom aged 18 years or over except: (a) employees of the Promoter; (b) employees of agents or suppliers of the Promoter, who are professionally connected with the competition or its administration; or (c) members of the immediate families or households of (a) or (b) above”.

A complaint was made against that ad, claiming the prize had not been awarded in accordance with the terms and conditions. It was won by the brother of the garden makeover supplier. The ASA, therefore, challenged whether the promotion has been administered fairly.

The company noted that the winner of the draw was made by a randomised number generated live on Facebook. Additionally, the amusement and prize draw company emphasised that employees of the company and their immediate families were not eligible to enter the draw. However, this did not extend to third-party suppliers (i.e. the garden makeover supplier). Furthermore, the T&Cs stated that the company reserved the right to amend their T&Cs as and when required, a right it had utilised several times.

The ASA stated that promoters must conduct their promotions:

• Equitably, promptly and efficiently.
• To be seen to deal fairly and honourably with participants and potential participants.
• To avoid causing unnecessary disappointment.

The original T&Cs of the promotion stated that employees, their immediate family members, and agents or suppliers of the company who were professionally involved in the competition or its administration were prohibited from entering the prize draw. The ASA highlighted that the T&Cs had been retrospectively changed, after the promotion had ended and the winner selected. The brother's exclusion was removed only after it was known that he had won the prize. The ASA considered that retrospectively removing an exclusion to allow a particular person to win was not a fair or honourable way to treat participants. The promotion was held to have been administered unfairly and therefore breached the Code.

Takeaways

The key takeaways from the ASA rulings this month are:

• The ASA is using AI software to crack down on greenwashing claims: Ads and other marketing material are being analysed by intelligence software to identify whether green claims are being made. The tool is likely to allow the ASA to scrutinise a greater number of ads and to proactively regulate advertisers, rather than respond to complaints.
• Know the rules on prize draws and their associated T&Cs: Everyone likes a freebie, however, before offering a prize draw to consumers, be sure to familiarise yourself with the ASA's guidance.

Top ASA stories last month

Using AI in advertising

On 13 January 2025 the Government announced its AI Opportunities Action Plan, with the intention of making the UK a world leader in the AI field. Though a tool which can be embraced to increase efficiency, drive growth and deliver quick solutions, AI safety and governance needs to be monitored.

In response, the ASA has published guidance on the use of AI in advertising, noting the Committee of Advertising Practice (CAP's) commitment to stay alert to the use of generative AI and responses to public policy.

In recent news, technological advances have allowed the use of image and voice replicas from individuals who were not a part of the advertisement work/campaign. In September 2024, the UK signed the 'Council of Europe Framework Convention on Artificial Intelligence and human rights, democracy and the rule of law', which includes safeguards around the use of AI, including the protection of human rights, appropriate use of data, respect for privacy and protection against discrimination. It is not currently clear how the UK will implement the requirements however, so developments in this space are expected.

Further information can be found here on the ASA website.

CMA activity in January

The CMA's draft annual plan for 2025/2026

On 13 January 2025 the Competition and Markets Authority (CMA) released its draft annual plan for 2025/2026, setting out its proposed focus areas over the next 12 months. The release comes at a particularly prevalent time as the CMA begins to discharge its new responsibilities under the Digital Markets, Competition and Consumers Act 2024 (DMCCA).

When the CMA released their new Purpose, Ambition and Strategy at the start of 2023, it set several Medium-term priorities. One of these priorities, from a consumer perspective, was ensuring that people are confident that they are getting great choices and fair deals. The focus includes:

• Consistently focused action on the areas where consumers spend the most money and time, particularly for people who need help the most or who are otherwise vulnerable.
• Enabling people to make their own choices, without being misled or put under pressure.
• Resolutely deterring restrictive, exclusionary and exploitative anti-competitive practices.

In that vein, the 2025/2026 draft annual plan has confirmed the following indicative areas of focus for the CMA in the year ahead:

1. Drip and dynamic pricing, travel, housing, online entertainment; and where the CMA has previously set expectations for responsible businesses, such as unregulated legal services and trader recommendation sites.
2. Continue competition investigations in relation to public procurement (including businesses serving the education sector).
3. Complete our market investigation into veterinary services.

The draft annual plan can be found here on the CMA's website, for further information.