Green claims must make clear their limitations and consider all angles
The ASA remains steadfast in its position that advertising the positive steps taken to improve environmental impact whilst actively being responsible for environmental harm will be considered misleading to consumers because information about the companies wider activities is material inofrmaiton and should not be omitted from the ad.
An ad for Hurtigruten Expeditions claimed “Free flights to Svalbard and more” and described the company as leaders in “sustainable expeditions”. When challenged the advertiser argued that consumers would interpret “sustainable expeditions” as referring to the cruise component only, not the flights, in the context of an ad for an expedition cruise company. They pointed to their use of an image of a cruise ship in the ad, along with the text “sail this summer”. They also highlighted their efforts in environmental responsibility, such as launching hybrid electric ships and reducing waste.
The ASA upheld the complaint, on the basis that given it would be necessary for most consumers to fly to the starting point of a cruise, the term “sustainable expeditions” would be understood by consumers to refer to the entire holiday package, including flights. They noted that while HX had taken steps to reduce the environmental impact of their cruises, these measures did not cover all aspects of the holiday packages, particularly air travel, which has a significant environmental impact. On this basis, “sustainable expeditions” was not adequately substantiated and was therefore misleading. (Hurtigruten UK Ltd 17 July 2024).
Luton Rising's magazine and poster ad detailed the airport's planned expansion and the 'unique green controlled growth plan" which would limit the "…noise, carbon, air quality and road traffic impacts" caused by the development. The ads failed to mention the limits on carbon emission excludes the greenhouse gases (GHG) emitted from air traffic movements; movements which accounted for 83.7% of all GHG emissions from Luton airport in 2019. It was deemed misleading to omit that this factor won't be considered in the 'green' limitations for the development (London Luton Airport Ltd, 10 July 2024).
Wessex Water's TV ad listed ways the company's investing in systems to "tackle storm overflows" to keep "…rainwater (separate) from sewerage" in the context of reducing environmental damage caused by storm overflow pollution. Whilst the ASA accepted that the activities were likley to result in improvements, it noted that Wessex Water's storm overflow problems had caused harm to the environment and (as seen in last year's water company rulings), the looked at the company's EPA rating of two stars which the ASA considered contradicted the overall impression of the ad the ad was ruled to omit material information as a result. (Wessex Water Services Ltd, 10 July 2024).
Claims can be deemed comparative even when not comparing specific products
In order to make comparative claims, there needs to be substantiation of the negative impact of the competitor product as claimed. A pre-roll ad for Wild deodorant featured a woman with visible bruising on her chest, applying deodorant and stating she was prioritising her health as a breast cancer survivor: “As a breast cancer thriver I’m prioritising my health and I’ve decided to finally go Wild” and “I’ve seen so many positive comments about how it’s completely natural […]”. The complainant believed the ad implied a link between traditional deodorants and breast cancer, which they found misleading.
Wild Cosmetics argued that the ad did not make such claims and was simply highlighting the woman’s choice to use a natural product for health reasons, and emphasised that the ad did not compare Wild to antiperspirants or suggest it could prevent cancer. The ASA upheld the complaint, noting that the ad’s emphasis on the woman’s breast cancer history and her switch to a natural deodorant for health reasons could mislead consumers into thinking traditional deodorants posed a health risk whereas Wild did not. In the absence of evidence that this was the case the ASA ruled the ad misleading. (Wild Cosmetics Ltd 24 July 2024).
Endorsements must relate to the advertised product
Simmer, a food delivery service, posted ads on social media featuring clips from a BBC Dragons’ Den episode. The video showed the Dragons praising high-protein, chef-made meals, which were actually clips from a different company, Planthood Ltd’s, appearance on the show. Simmer claimed the ads were meant to be light-hearted April Fool’s content, but a team member mistakenly used them for paid advertising. The ASA upheld complaints that the ads were misleading, as they used footage from Planthood’s Dragons’ Den episode, giving the false impression that the Dragons endorsed Simmer’s products. The ASA did not accpet the April Fool's joke gone wrong explanation and concluded that the ads breached CAP Code rules on misleading advertising and endorsements. (Simmer Ltd 17 July 2024).
Fear and distress can be permissible when the ASA considers there is a justifiable reason
A cinema ad for Frontline19, a support service for NHS and frontline workers, depicted distressing scenes of NHS workers, including a doctor being attacked and a paramedic with bloodied gloves. The ad also showed the aftermath of an attempted suicide, highlighting the mental health struggles of NHS workers. Five complainants, including a doctor, found the ad overly graphic and upsetting. Frontline19 defended the ad, stating it aimed to raise awareness about the mental health crisis among NHS workers and to solicit donations for their support services. They acknowledged the ad’s potential to upset viewers but believed it was necessary to convey the harsh realities faced by NHS workers.
The ASA assessed the complaint and did not uphold it, concluding that the ad was prepared responsibly and did not cause unjustifiable distress. They noted that while the ad’s content was distressing, it was not unduly graphic and served to highlight the mental health challenges faced by NHS workers. The ad’s aim was to inform viewers about the mental health crisis and to encourage donations for support services. Given the ad’s context and its age restriction for 15-rated films and above, the ASA found that any distress caused was justified by the ad’s important message (FL19 CIC t/a Frontline 19 17 July 2024).
Ads must not promote unsafe and irresponsible practices
The ASA ruled against Mommy n Toys' ad for a "safe sleep" anti-roll pillow for babies on the grounds it irresponsibly condones unsafe practices. The ad contravenes NHS guidance which clearly states the use of pillows for new-born babies increases the risk of sudden infant death and that the safest option is a cot or Moses basket sans pillows or raised cushioned areas. The ad was banned as a result (Mommy n Toys, 10 July 2024).
The existence of loot boxes is material information
Another day, another ad has failed to sufficiently indicate 'loot box' random-item purchases are used in their game. Golf Clash from Electronic Arts briefly included a disclaimer that "optional in-game purchases (including random items)" were available during game play at the bottom of their ad. However, the light grey font against a brightly coloured moving background made the text very difficult to read. Consequently, the ASA found this was likely to mislead consumers about the presence of said loot boxes within the game. This ruling joins a multitude of others handed down by the ASA in response to marketers failing to include material information about in-game purchases, or purposefully presenting information in an unclear or ambiguous manner. (Electronic Arts Ltd t/a EA, 10 July 2024).
Where exclusions apply, state that clearly that they apply and what they are
Benenden Healthcare's TV ad included the claims “everyone’s welcome” and “no one’s excluded” which the complainat challenge on the basis that not all medical treatments were covered. However, several significant treatments, such as surgeries related to cancer and heart conditions, were excluded. Benenden Healthcare argued that the ad featured a clear disclaimer which stated ‘terms and conditions’ applied, and said said the claim ‘no one’s excluded’ simply indicated that anybody could join regardless of age or pre-existing medical conditions. The ASA disagreed and held that the ad gave impression that anyone could join Benenden Healthcare to access private healthcare, and that, by association, their specific medical needs would be covered by the plan. The disclaimer in the ad was deemed insufficient to clarify the exclusions, leading to the conclusion that the ad was misleading.
The radio ad stated there were no catches to the healthcare plan, implying no significant restrictions. However, the ASA found that surgical treatments were only available after two years of membership, which was a significant restriction not mentioned in the ad. This omission was considered misleading as it would likely influence a consumer’s decision to join. (The Benenden Healthcare Society Ltd 24 July 2024).
How to mitigate these risks
- Do balance your green claims by making it clear if your company's activities also cause environmental harm
- Ensure endorsements used in your ads related to what is being advertised
- Include information about loot boxes in a manner than can be read
- Take into account NHS guidance when advertising baby products
- Do call your friendly neighbourhood advertising and consumer products lawyer to get help with the above
