Ensure claims are correct for the product classification
The CAP Code doesn't go into particular detail on the differences between a medicine that needs to be licensed by the Medicines and Healthcare products Regulatory Agency (MHRA), and the distinct category of medical devices which need to be registered with the MHRA. These product categories are subject to detailed legislation and regulatory requirements, and the distinctions between the two can get quite complex. From the ASA perspective, if it decides that a medical claim is made for a product that isn't a registered medical device, it will rule the ad in breach of the CAP Code and will not consider whether evidence is held for the claims. Social media ads for shoes made claims that wearing them would improve plantar fasciitis or the symptoms of it, such as "improved circulation", "noticed my balance gradually returning every day", "doctor-recommended solution for plantar fasciitis" were ruled in breach of the Code because medical claims were being made for products which were not registered with the MHRA as medical devices.
The advertiser was unable to provide evidence that the testimonials featured were genuine so breach the CAP Code in that regard too. (Hike Footwear, 28 August 2024)
Hold evidence for all claims
Claims for a "ground-breaking anti-colic innovation" that would "prevent colic" were found to be misleading because the evidence held did not relate to the prevention of colic. Whilst results for the reduction of colic symptoms were based on parents self-reporting the time their baby spent crying before and after using the product, they didn't include a control group and lasted only 6 days.
The advertiser noted the product wasn't a medicine, beauty product, medical device, or health related product and explained that its function related to the removal of air from milk prior to being drunk. The ASA kept within the scope of the complaint and investigated whether evidence was held for claims relating to reducing and preventing colic symptoms, and didn't provide any commentary on the classification of the product or whether the claims would be considered medical, so it looks like this position was accepted. (Tommee Tippee, 4 September 2024)
Again, animation doesn't automatically equate with appealing to under 18s
Alcohol ads must not appeal strongly to people under 18. As we saw a couple of weeks' ago, the use of animation doesn't in and of itself constitute appeal to under 18s. In this case, an ad for Hendricks gin featured a man in Victorian-style clothing who was shown travelling in an underwater vehicle reminiscent of a large diver’s helmet within an animated, mostly black and white, underwater fantasy-like world. The advertiser explained that the representations of animals were surreal not cuddly and the ad used a monochrome setting with old-fashioned items which included a monocular scope, binoculars and hardback books, and characters wearing adult Victorian clothing. Whilst the ASA considered some animated content might appeal to children and could be associated with youth culture, it ruled that this combination of human and animated characters would not appeal to children. (William Grant & Sons Ltd, 4 September 2024)
Not all puns are benign
In one of those rulings which are uncomfortable to summarise, the ASA had to point out to an advertiser, selling made to measure blinds, that referring to "having your eyes out" in the context of an image on person with stars and paint splatters covering their eyes, would be understood as a reference to blindness, and had the effect of making light of the disability. It was therefore ruled to breach the CAP Code on the basis that it had the potential to cause serious offence. The CAP Code rule against causing serious or widespread offence notes that particular care needs to be taken to avoid offence on the grounds of a protected characteristics, which includes disability. For reference the full list reflects protected characteristics in law which are age; disability; gender; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. (Home Furnishings Ltd, 4 September)
More than just age targeting when advertising HFSS
The ASA upheld a Just Eat Ad for an HFSS food which appeared on social media on the basis that it had been directed at children (under 16s) through the selection of the media in which it appeared, despite the advertiser having applied age targeting tools to show the ads to over 18s. The ASA pointed to CAP guidance which stated that age-restricted ads online stated that marketers should be able to demonstrate that they had taken all reasonable steps, including using all additional targeting tools available to them, to ensure that HFSS product ads were directed at an audience aged 16 and over to minimise children’s exposure to them. Therefore the fact that interest-based targeting was available, but not been applied, meant the ASA did not consider that the advertiser had taken all reasonable steps to minimise the exposure of the ad to under-16s. (Just Eat.co.uk Ltd, 21 August 2024)
How to mitigate these risks
- Keeps claims within scope for your product's classification.
- Ensure evidence matches claims.
- Remember that "just joking" isn't a reliable response.
- Consider all available targeting options.
- Do call your friendly neighbourhood advertising and consumer products lawyer to get help with the above.
