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ASA rulings round up 27 March 2024

02 April 2024
The DWF consumer regulatory team take you through the key lessons from the last fortnight.

The existence of "loot boxes" is material information which should be included in gaming ads

Competitor complainants must agree to be named in ASA rulings, but individuals can remain anonymous. Occasionally an individual complainant will have expertise in the area which gives context to the complaint which the ASA will share. This is the case with three rulings on in-app games purchases where the ASA upheld complaints made by an academic researcher in game regulation.

Guidance published by the Committee of Advertising Practice following public consultation goes into detail on complaint advertising of in-game purchases. It specifically notes that where the game includes in-game purchases containing an element of chance, in which the consumer does not know what they will receive until the transaction is completed ("loot boxes"), this is information that should be stated in the ad. The information doesn't need to be prominent but shouldn't be difficult to find. In each instance the advertiser was not to have disclosed (or inadequately disclosed) the existence of in-game purchases including loot boxes. The first advertiser's argument that the game didn't require users to make a purchase in order to play and progress was not considered relevant. The second included information regarding in-game pages on the landing page from the ad but not in the ad itself. The third advertiser noted that it usually included the text “Includes optional in-game purchases (includes random items)” but this had been omitted by mistake. (Miniclip (UK) Ltd, Jagex Ltd, Electric Arts Ltd 20 March 2024)

This is an area which is worth looking at through the lens of the Digital Markets Competition and Consumers Bill which adopts subtle but significant changes to the concept of misledingness (more information here).

RRP prices must be genuine

An advertiser which had only ever sold its product at £14.99 was found to breach the Ad Code when it claimed "Act now. 50% off" and "RRP £29.99". The fact consumers could save some money by buying in bulk was not connected to the RRP claim which the advertiser acknowledged it could not substantiate. (Vytaliving Ltd 27 March 2024)

Ads for age restricted products should not appeal to children

Featuring emoji's of Santa and presents alongside an image of an elf holding a bazooka in ads for free spins' after depositing £20 was considered 'high risk' of appealing to children. Given that Christmas has strong appeal to children, the advertiser would have needed robust age verification steps in place to ensure that the ads for gambling products were not seen by under 18s. Examples of what would be considered robust age verification steps included marketing lists that validated payment data or credit checking. Relying on the fact that the social media platform users self-verified their age would not be sufficient. Therefore, because the advertised had not excluded under-18s from the audience the ads should not have including imagery that would appeal to children and the ads were ruled non-compliant. (Lindar Media Ltd 20 March 2024).

An e-cigarette poster ad was ruled irresponsible based on its use of fictitious characters that would likely appeal to individuals under 18. The two products were styled to look like alien heads which, because of their shape, size and the light-up eyes, presented the device as a plaything and therefore held more appeal to children than those over 18. The colours, language and theme used in the ad only helped to contribute to the appeal to children. (Hing Fo International Ltd 20 March 2024).

On the same day as this ruling the government introduced The Tobacco and Vapes Bill which currently includes provisions to give government powers to restrict flavours and packaging for e-cigarettes that is intentionally marketed at children and to applied restriction to their display in shops.

People in gambling ads can't be of strong appeal to under 18s

In the latest in a series of rulings assessing the likely appeal of celebrities, Chris Rock has been ruled acceptable to feature in a gambling ad. Although he had featured in a number of films for children these were all animated and whilst the characters would be of strong appeal to children the ASA considered it significant that these were voice-over roles, and there were no visual or physical similarities between the characters he portrayed and his appearance in the ad. Again social media followings were reviewed as part of the investigation showing that Rock's following of under 18s were low in percentage and absolute terms, 6.3 million Instagram followers, 0.5% were registered as under 18 which amounted to 31,500, and 0.1% of his 5.4 million X followers were under 18, which amounted to 5,400 followers. (LeoVegas Gaming plc 20 March 2024)

The basis of environmental claims must be clear

The ASA considered that the claim "fully recyclable" would be interpreted as meaning entire product was easily recyclable once it had reached the end of its life cycle and that consumers would expect that recycling process to be widely available and easily accessible to UK consumers. Given the product could only be recycled at specialist recycling centres and currently there was only one centre in the UK which could recycle the product and the advertiser had not provided evidence relating to its recyclability, the claim was ruled misleading. The ad also made general environmental claims which implied a positive effect on the environment for which substantiation was not provided. (Easigrass (Distribution) Ltd 27 March 2024)

How to mitigate these risks

  • Be on alert for missing loot box disclaimers
  • Only use RRPs when evidence is held
  • Apply age restrictions effectively
  • Undertake due diligence into a celebrities following
  • Cross check the claim with what is achievable practically
  • 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.

Further Reading