Promotions means significant terms and conditions
The ASA does not regulate packaging, unless the product appears as a packshot with an ad or includes a sales promotion. The Ad Code lists significant terms and conditions that need to be available on the initial ad. Although having the full terms and conditions available elsewhere (such as on a website) is usually going to be considered sufficient, the ASA will not agree that limited space on pack meant that there was no space for key information. In fact it didn't agree that the space was limited. In this instance the packaging omitted information such as the age restriction, and the date promotional vouchers could be claimed – and therefore ruled that the promotion was misleading, (HJ Heinz Foods UK Ltd 24 January 2024).
Subscription traps
An ad for a weightloss plan which referred to the plan costing £6.99 breached the Ad Code, for omitting to state that a subscription had a minimum 12 month term so the minimum price consumers would pay was in fact £83.88. The ASA can only comment on breaches of the Ad Code, not consumer law generally, so could only note that downloading the programme consumers were asked to waive their right to a 14-day cooling off period, (Team RH Fitness Ltd 31 July 2024).
The interesting thing here is that once the Digital Markets Competition and Consumers Bill (DMCC) becomes law, there will be specific obligations on what information must be provided before a consumer enters into a subscription. We've written an article on the DMCC Bill which provides information on other changes including potential penalties, (The DMCC - a potential game changer for product claims and advertising).
Misleading PPI ads are still out there
In fact advertisers claiming to support consumers who have been mis-sold Personal Protection Insurance are in turn mis-selling their own services. The ASA has a project running to deal with these claims specifically. Two upheld rulings from the project show that the key concern is advertisers implying a link with HMRC or an official government service when they are not, and taking advantage of consumers' concerns about the cost of living crisis. In both instances, advertisers were selling a service where they would complete the relevant forms needed for consumers applying to the HMRC to claim tax deducted from statutory interest paid alongside payment protection insurance (PPI) refunds. The advertisers charged a fee for the service which can be completed for free directly, (Brooksdale Ltd, Reclaim My PPI Tax Ltd 31 January 2024).
Energy savings claims in the spotlight
Staying with ads which seemed to exploit the cost of living crisis – the ASA upheld complaints against social media videos which featured Dame Ester Ranzten, looking at the savings and energy efficiency benefits of downsizing from a typical three bedroom house to a new Churchill apartment. Unfortunately savings claims of £1,000 in energy costs after downsizing relied on a property with a B energy rating heated by a heat source pump, and not all properties in the portfolio have these characteristics. The basis of the calculation hadn't been explained, so consumers wouldn't know that properties with a lower energy rating or differ heat source would not generate the same savings. It's clear from the ruling that care had been taken with the calculations, but the advertisement needed to have made the basis of the calculation clearer in the ad. When it drilled in to the detail of the comparator properties, the ASA came to the conclusion that in some cases, the appropriate comparator property had not been chosen. When looking at the cost of living point the ASA explicitly noted that the underlying messages of the ad, energy efficiency and consideration of bills in a time of rising prices – were not in isolation problematic, even when used in the context of the cost of living crisis. However it considered that one of the ads had a consistently negative message which was targeted at older people (such as rationing heating, going back to work to pay bills and relying on savings) and therefore upheld on that point, (Churchill Retirement Living Ltd 31 January 2024).
A key point when making comparison against competitors is that not only must substantiation be held, there has to be a means for the consumer to verify it. Verification can happen either by there being sufficient information within the ad, or a signpost to where more information is available. A competitor took issue with Aga's claim that its product has "the lowest running costs for any heat-storage cast-iron range cooker" on the basis it wasn't substantiated nor was it verifiable. Aga provided detailed evidence in relation to the complaining competitor's products, but it showed that the competitor product was more efficient when in use. Furthermore the ASA pointed out that a "lowest… of any" claim was a claim against the whole market, and as such had not been substantiated. The ad was also ruled non-compliant for lack of verification information, (AGA Rangemaster Ltd 24 January 2024).
Be wary of claims linking to serious medical conditions
The ASA looked at the marketing materials for Lynne McTaggart, an advocate of alternative medicines, after complaints were made by the Good Thinking Society (a non-profit organisation which promotes scientific scepticism). Concerns were raised regarding the validity of claims made in the ads regarding the "Power of Eight" and "Time-Light" as being able to heal a variety of medical conditions such as paralysis, crippling arthritis, cataracts, multiple sclerosis, genetic liver disease, depression and chronic fatigue. The advertiser responded by clarifying that her promotion of the events was not an endorsement of alternative medicine and emphasised the complementary nature of the methods in combination with professional medical treatment. The ASA upheld the complaints concluding that it lacked substantiation and discouraged essential treatment for serious medical conditions for which medical supervision should be sought, (Lynne McTaggart 31 January 2024).
How to mitigate these risks
- Provide all material information
- Double check your calculations
- Review your evidence as a competitor would
- Do not discourage essential medical treatment for serious conditions
- Call your friendly neighbourhood advertising and consumer products lawyer to get help with the above
