Marketing Matters: September 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:

• Key takeaways from the ASA's rulings in September
• What the ASA have been focussing on over the past month
• What the CMA has been up to last month

ASA rulings – key takeaways for your A&M departments

Another month, another 35 rulings! Only two of the 35 complaints were not upheld. So, the ASA have been busy. We've picked out some of the main themes arising from these rulings to be aware of when your A&M teams are creating content:

Misleading claims

Misleading advertising continues to top the list of the type of claims that breach the CAP Code. 13 out of the 35 ads looked at were considered to be misleading. So, what did the ASA pick up on this month?

Compared to last month's focus on gambling ads, this month the ASA turned its attention to advertisements for cosmetic surgery abroad. By way of example, two offending advertisements were advertising rhinoplasty (here and here), with another relating to bariatric surgery. So why were the ads misleading? Simply put, they were not sufficiently detailed. There was very little explanation of what the procedures themselves involved and no information about whether any pre-consultation period was necessary (which tends to be the case with this type of thing). The aim of the ads was clearly to get customers to act fast and not consider the practicalities in much detail (more on this below in the section on irresponsible advertising).

Moving away from cosmetic surgery, a ferry crossing route between Newcastle and Amsterdam also became the subject of the ASA's scrutiny. A Danish shipping company had been advertising the ferry crossing, noting the price of £47 per person, one way, plus a car. The caveat to this was that the offer only seemed to apply to a group of four people who would get a cabin together, not if you were travelling alone. Unfortunately, this was not obvious from the ad, which was therefore found to be in breach of the code. The ASA emphasised that, in addition to the concern that the ad may mislead customers, advertising must provide clear information when it comes to pricing.

Speaking of pricing, the final ruling we have looked at concerned a listing for a 2020 Renault Zoe GT from Driving Cleaner Cars (DCC). The ad featured text saying "£15,300". What the ad did not say was that anyone purchasing the car would also have to pay an admin fee of £199 to DCC. This was misleading, as quoted prices must include non-optional taxes, duties, fees and charges that apply to all or most buyers.

Irresponsible advertising

Irresponsible marketing came a close second to the above with 10 out of the 35 rulings finding that advertising was irresponsible. So, what has been going wrong?

One rather interesting ruling concerned the luxury fashion retailer, Celine, and one of their clothing ads placed in a national newspaper. The ad features a female model who was "depicted lying on the ground and leaning back on her elbows, wearing shorts and a lace jacket that was hanging open, leaving her midriff exposed." The main issue was the fact that the model looked particularly thin in the ad. Once challenged, the company responded to the ASA, providing evidence that the model was not underweight – BMI information, clothes size (10) and a GP opinion noting that she was slim, but not unhealthy were all part of this evidence. The ad was still found to be in breach of the CAP Code. Why, you ask? Well, it was all down to the styling – the way the model was presented, her particularly narrow-looking waist made her look too thin and, as such, the ad was irresponsible in that it could be seen to be promoting an unhealthy body image.

The next ad where social responsibility was found to be below par related to a vegan charity. The charity was making a point about the rise in intensive dairy farming in the UK, but in doing so, their ad (posted on social media, in a language app and on a games app) featured a woman opening up and eating a 'Killer Yoghurt' which contained bloody and raw offal meat. She was then shown smiling with blood in her teeth and dripping down her chin. Various wording went with the yoghurt, such as "flavoured with a mother's grief", "umbilical cord flavour" and "blended with brutality". All in all, it was found to be too distressing. Further, there was an added risk that children could come across it in the fora in which the ad was posted and it could be particularly distressing for them.

E-cigarettes

The ASA also picked up on several TikTok posts promoting unlicensed, nicotine-containing e-cigarettes. This is not only a breach of the CAP Code, but apparently also a breach of TikTok's terms and conditions. A total of six of this type of ad was picked up in September (see, for example, this ruling). In one instance, the company found to be in breach responded to ASA's enquiries stating, essentially, that they had seen others do it, so thought it was fine. They were informed that it was not.

Rogue influencers

A TikTok influencer teamed up with a company selling spices and seasoning to promote their products in a couple of posts on the social media platform. It was questioned whether the ads were obviously identifiable as marketing communications and the ASA found that they were not. However, interestingly, in the company's response, it was noted that the influencer had done the agreed two posts (and marked them as ads) but continued to post about the company's products beyond what was required in their contract. The ASA considered this but found that the contract period for posting was still live – notwithstanding the fact that the two agreed posts had been made – and it was also understood that the influencer would receive free products from the company, as well as agreeing to not promote competitor brands. As such, there was still a commercial relationship, and the post should have been identifiable as marketing communications.

In another case of influencer involvement, a schnapps company got into some trouble as a result of another TikTok post. The post talked about being given a night out by the company (including a party bus, bottles of vodka, etc.). It was challenged on several points and the ASA upheld all of them. As the ruling above, it was not clear that the post was a marketing communication. It had not been properly targeted, as it involved alcohol but was accessible to people under 18. The advert showed an irresponsible level of alcohol consumption and, finally, it included people in the video who were known to the public as being 22 and 23 years old. 

Takeaways

The key takeaways from the ASA rulings this month are:

• Be clear – Not just about pricing, but generally, be careful to not mislead your consumers. Misleading advertising remains at the top of the ASA's breach list.

• Watch your styling – Whether or not your models are perfectly healthy, if your adverts depict them in an unhealthy manner, your ad may breach the CAP Code.

• Check before you post – Just because you have seen others do it, if in doubt, check the rules before posting ads on social media. As we saw above with the e-cigarettes, trying to excuse advertising by saying: "they did it first" will not work.

• Watch your influencers – Make sure the influencers you team up with know the rules around advertising and marketing communications. And, very importantly, make sure they are responsible.

ASA focus points for September

In September the ASA has been focussing on advertising for certain groups, as well as Halloween and Christmas promotions.

Demographic-focussed advertising

In celebration of the International Day for Older Persons on 1 October, the ASA published its article entitled "The vintage collection - timeless advice for ads aimed at older persons", which serves as a helpful reminder of the key considerations to make when advertising for certain groups or demographics in particular, which are as follows:

1. Don't mislead customers by stating that a product is uniquely suitable to them, when it could be equally suitable to anyone else.
2. Get the pricing right – include all taxes, even if a large part of the targeted group may be exempt from such taxes.
3. And finally, be responsible. Sometimes, ads appear to be trying to take unfair advantage of more vulnerable people – and that won't fly with the ASA.

Avoid a fright this spooky season

Another focus area for the ASA, as we step into October, is the upcoming Halloween promotions. Here, A&M professionals are advised to be safe (be careful with the fireworks!), not too frightening (think happy clown vs. machete-wielding, killer clown) and not offensive (advertising Halloween costumes with a negative portrayal of mental health conditions will not be acceptable).

It's never too early…

Whilst covering Halloween, the ASA also went a step further and considered Christmas advertising. Not a moment too soon, with decorations, Christmas cards and wrapping paper beginning to pop up in stores across the country! There are a few extra things for your marketing teams to think about this year. As we are still suffering from the cost-of-living crisis, it is important not to encourage consumers to spend excessively or to make use of buy-now-pay-later (BNPL) schemes. Be responsible. Further, any promotional T&Cs must be clear and urgency/pricing claims should be avoided as much as possible. In terms of responsibility, ads also should not be promoting excessive drinking over the festive season and vulnerabilities in children should not be exploited for commercial gain.

CMA activity in the A&M space

A bit more has been coming out of the CMA space this month, with its focus set on AI markets and a review of vet prices.

The CMA published its initial report on AI Foundation Models (FMs) on 18 September 2023 (press release here). FMs are artificial intelligence (AI) systems with broad capabilities that can be adapted to a range of different, more specific purposes. The CMA has warned that a positive outcome of the AI boom is unlikely, with several risks including an increase in false information, fraud and high prices for using technology amongst other things. In terms of the impact this will have on the A&M sector, this has yet to be seen. However, given that AI is already being used by some marketing departments, it is still likely to be one to watch, as avoiding the spread of false or misleading advertising is a key focus of the ASA, as seen above.

Paws for thought

The CMA also launched a review of the UK veterinary sector in early September. The review will look "at consumer experiences and business practices in the provision of veterinary services for household pets in the UK. It will explore how well the market, worth over £2 billion in the UK, is working for pet owners including whether they are receiving the information they need at the right time to get appropriate treatment for their pets." The review comes amid fears of a surge in vet bills, deemed by some consumers to be "eye-watering" as the costs of owning, say, a dog has jumped by 12.8% (ca. £256) over the past year. In terms of what this means for the advertising industry, this review will be particularly focussed on the pricing of services and ensuring that consumers are properly protected.