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ASA rulings round up 14 February 2024

16 February 2024

The DWF consumer regulatory team take you through the key lessons from the last fortnight.

The evidence has to match the claim

The ASA doesn't regulate political advertising but does cover ads from government agencies, local authorities etc. In a rare investigation against a radio ad, the ASA looked at a public service and government organisations claims regarding the impact of the Ultra Low Emission Zone (ULEZ). Specifically the claim that "one of the most polluted places in London is inside your car". The organisation provided documents which indicated that London had high levels of pollution and stated that the evidence showed that pollution was highest when people were closer to the source of emissions. The first point wasn't disputed, however the ASA didn't consider that the documents substantiated the point that being inside a car is one of the most polluted places to be. For this, comparative data showing pollution across different locations in the city would be necessary, crucially the data would need to include non-professional drivers – whereas the studies GLA provided related to professional drivers and didn't deal with exposure within the car. The ruling goes into considerable detail regarding irrefutably high levels of pollution in London, but the evidence didn't specifically relate to the claim made and therefore the complaints were upheld, (Public service & government, 7 February 2024).

The ASA received 503 complaints against various TFL ads regarding ULEZ and investigated five issues. TFL had no trouble substantiating the claim “London has an urgent air quality problem” and the ASA ruled it in compliance. Claims that ULEZ would “help clear the city’s air”/“help clear London’s air” were considered adequately caveated (as not being the sole factor to improve air quality), supported by the data provided by TFL. Complaints against a claim in relation to the potential link between air pollution and dementia weren't upheld either. 

However, the same did not go for the claims “we have seen almost a halving of levels of nitrogen dioxide”, “helping to reduce harmful nitrogen dioxide pollution by nearly half” and “Did you know that most air pollution related deaths actually occur in Outer London areas?”. The data relied on used models and estimates, which, whilst not a problem in and of itself, didn't substantiate the claims which appeared to refer to real world reductions in nitrogen dioxide and "actual" deaths, (Transport For London, 7 February 2024).

Don't count on an informal resolution on an environmental claim investigation

The ASA pulled up  an ad making an "Zero Emissions" claim, the ruling noted that it wasn't clear that the claim only applied for particular electric vehicles whilst the car was being driven, and should not be made for cars powered by petrol or diesel engines. The advertiser didn't defend the claim and simply confirmed it had been removed. We've seen a few cases where an investigation has gone to a full investigation when the advertiser has agreed to pull the challenged claim, presumably this is because the ASA wishes to ensure there is plenty of published precedent for advertisers to draw from, (Automotive company, 7 February 2024).

Qualify "zero emissions" claims

The ASA doesn't regulate keywords themselves (or natural search listings), but if the keyword autofills into a paid for ad it will be covered by the Ad Codes. The ASA pulled up a luxury car company on the use of "Zero Emission Cars" in its Google ad – and again ruled that the claims should not have been made without adequate qualification, (only electric vehicles, only when driven). The car company confirmed this information was included across marketing communications in all media and had halted all bidding on “Zero Emissions Cars” keywords and reviewed all generic keywords they bid against, (Car company, 7 February 2024).

Ensure to be sure on classification whether it's the product or the communication

Various posts on the social media platform (formerly known as Twitter) referred to CBD products, whilst featuring promotional codes and making claims to alleviate anxiety and insomnia. In doing so the posts ran up against Ad Code rules which reflect the Consumer Protection from Unfair Trading Regulations, the Human Medicines Regulations and Nutrition and Health Claims Regulation (Assimilated Law). 

The ruling serves as reminder that the ASA doesn't need there to be a formal agreement to consider there to be a commercial arrangement, so it ruled the posts were marketing communications and needed to be labelled. The individuals posting said they didn't have formal arrangements in place, so didn't think they needed to label the posts, but they had an agreement that a commission would be earnt when consumers bought the product using a specified code which is a commercial arrangement. Similarly whether someone considers themselves to be an influencer or not will not be relevant to the ASA. The CMA deals with this too from the legal side and this will be covered by the new Digital Markets, Competition and Consumers law once it replaces the Consumer Protection from Unfair Trading Regulations 2008 – more information on the impact of the DMCC Bill is available here. 

Claims to treat disease (which includes any adverse condition) by restoring, correcting or modifying physiological functions by exerting a pharmacological, immunological or metabolic action, can only be made by licensed medicines. Beyond very specific "reduction of disease risk" claims which must be authorised and then listed on a public register, claims that state or imply a food prevents, treats or cures human disease cannot be made for foods. Therefore claims to treat anxiety or insomnia whether direct or implied, cannot be made for any food supplement and the ASA upheld its own challenge on this point, (Supreme CBD Ltd, 14 February 2024).

How to mitigate these risks

  • Check the claim matches the evidence
  • Stress test interpretations of the claim
  • Review choices for automatic keyword features
  • Undertake due diligence as to regulatory requirements for advertising products
  • Call your friendly neighbourhood advertising and consumer products lawyer to get help with the above

Please contact our authors Katharine Mason or Dominic Watkins if you have any queries or need legal advice.

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