Marketing Matters: Review of September 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 September's ASA rulings.
• Other top ASA stories.
• CMA news for the same period.
  

ASA rulings – key takeaways for your A&M departments

In September, the ASA handed down 29 rulings of which one was not upheld, and one partially upheld. We've highlighted some of the ones which may be relevant to your A&M departments.

Misleading claims

Of the 29 rulings, it came as no surprise that 16 were deemed to be misleading customers. We've picked out a couple which caught our eye.  

A bag company made claims that all of its products were "handmade in Italy using the finest components from all over the world" and "continually featured" in international fashion magazines (alongside images of magazines including Vogue Business, Vanity Fair, and Pomp). The ASA discovered that products in the retailer's main line were mass produced in Italy whilst those in their London line were handmade, but not in Italy. As all bespoke and non-bespoke products featured on the same webpage and there was insignificant evidence that the bags had regularly featured in the prominent magazines depicted on the website, the Ad was deemed to be misleading and unsubstantiated.

The ASA identified a misleading Green Claim from a car manufacturer which said that their hybrid car model combined "the power of a petrol engine and the efficiency of a battery-powered electric motor. Exciting, efficient, and sustainable”. The manufacturer explained the Ad compared their hybrid model to their non-hybrid model which did not have an electric battery engine so produced higher carbon emissions. As this comparison was not referenced, it was ruled that the Ad would be understood by consumers as referring to the full life cycle of the hybrid car which produces greenhouse gases when the petrol engine is used. Therefore, the absolute claim of "sustainable" gave a misleading impression of the vehicle's environmental impact.

Prize promotions

A fast-fashion retailer posted an Instagram caption reading "Win a $1000 CASH. To enter simply: 1. Follow. 2. Like this post. 3. Leave a comment with a [flying money emoji]. 4. Tag a friend for an extra entry. Winner announced 12.10.23. T&Cs apply.” A complaint was filed to the ASA as it was not clear that a winner had been published despite many requests from the brand's followers which made them question whether the promotion was administered fairly.

The brand explained that a winner was announced by the brand on 10 December 2023 by replying to the winner's comment on the original post. They believed that entrants would see the author's comment if they visited the post as this would likely show up in the top 10 comments. The winner was not announced via any other mechanism.

The ASA requires promoters to publish all information that indicates a valid award took place however, on this occasion, the information was extremely inaccessible to Instagram users amongst the thousands of comments on the post. Any customer would have to re-visit the original post and actively search for the brand's comment to see the winner had been announced. Furthermore, as some users had commented on the post asking for the results of the promotion, it was deemed that the promotion had not been conducted fairly or clearly.

Harmful and/or offensive advertising

A website selling blinds featured an advert on their website including the text “Made-to-Measure Quality Blinds…WITHOUT HAVING YOUR EYES OUT! […] Blind envy starts here…” alongside an image of a person with paint splatters and stars over their eyes. The retailer defended the Ad; stating the term “having your eyes out” is a widely recognised expression to convey disbelief, in these circumstances, as a reaction to their great prices.  However, the ASA ruled that the combination of the words 'Quality Blinds' and the image of the person with their eyesight obscured would likely be construed as a reference to blindness and made light of a disability. Therefore, it was likely to cause serious offence to those with visual impairments.

Other claims worth noting

A beer manufacturer posted an Instagram reel showing individuals swimming in a pool and jumping in the sea whilst drinking and being around bottles of beer. Whilst the brand explained the Ad sought to show their links to Mediterranean culture on the Catalan coastline, the ASA held that marketing communications should not link alcohol with activities or locations in which drinking could be unsafe which included the rocky coastline.

Meanwhile, unidentifiable marketing communications on social media continue to get caught by the ASA with five ads from Influencers found to be in breach of advertising rules this month. Brands collaborating with Influencers need to ensure their Ads display prominent identifiers as marketing communication and disclose clear commercial intent.

Takeaways

The key takeaways from the ASA rulings this month are:

1. Keep your claims clear and truthful – while it is easy to get carried away when promoting a product, avoid making exaggerated claims and ensure distinctions are made between materially different products.

2. Announce your winners – publish all information to demonstrate a valid award has taken place. Consider whether the media and platform used to announce winners is accessible to all those who entered the prize promotion.

3. Be mindful to your audience – if your Ad contains sensitive depictions, be mindful to how consumers may react. If your audience is may be offended, it may not be worth the risk!

Top ASA stories last month

Don't look back in anger: fans upset over chaotic Oasis ticket sales.

The ASA received thousands of complaints from members of the public due to "dynamic pricing" for Oasis' tour next year. Due to demand, Ticketmaster raised the price of many tickets to as much as £350 per item, around £200 more than had been previously advertised.

The ASA is working closely with the CMA who launched an official investigation into Ticketmaster on 5 September. This investigation will be examining the clarity of pricing information provided to consumers and how time pressure impacts purchasing decisions. Ticket sales sites must be transparent in their dealings with consumers and give accurate pricing information. The CMA is inviting fans to provide evidence of their ticketing experience and have welcomed the government's recent announcement that it will be evaluating the strength of consumer protection when it comes to ticketing.

More on the ASA's update

Read about the CMA's investigation and request for information

Don't make a grave mistake! Make sure your Halloween ads are compliant.

The ASA has released guidance ahead of Halloween to ensure advertisers are 'scarily compliant' this October:

• Whilst marketers might want to 'shock' consumers with bargains and great prices, they should exercise caution that Ads are not too 'shocking' and cause excessive fear or distress with unnecessary gore and realism.
• Retailers should also consider whether their adverts promote or depict harmful stereotypes, for instance, unnecessarily sexualised models or costumes which are religiously or culturally offensive.
• Where Ads are marketing High in Fat, Salt and Sugar (HFSS) foods, these must not target audiences under the age of 12. For the ASA's HFSS Toolkit.
• Any AI-generated content must remain compliant and not mislead consumers – the ASA is keeping a watchful regulatory eye.  

CMA activity in June

Green or Gimmick? The CMA's Guide for Retailers

The CMA has issued a new Guide for fashion retailers on the use of Green Claims to ensure retailers stay on the right side of consumer law. The non-exhaustive Guide focuses on several contentious issues, including the avoidance of unclear terms, misleading imagery, and icons, and making fair comparisons. The main message to retailers is to be clear! Whether its product information, using filters or navigational tools, or if a green claim is only based on specific parts of a product's life cycle.

As well as issuing the Guide, the CMA has advised 17 well-known fashion brands to review their business practises and environmental claims. The letters sent to the 17 brands also serve as a reminder that the CMA will soon have strengthened powers under the Digital Markets, Competition and Consumers Act 2024. This large and ambitious piece of legislation introduces a new regulatory framework for digital markets that will apply to large digital companies with UK activities. As a result, the Government intends for the CMA to have a much broader and more powerful toolkit for competition, digital regulation and consumer protection that will enable it to regulate digital markets and protect consumers. This includes the power for the CMA to fine businesses up to 10% of their worldwide turnover if they break consumer law.

Read the CMA's press release