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ASA rulings round up 11 October 2023

12 October 2023
The DWF consumer regulatory team take you through the key lessons from the last fortnight.

Ensure everyone's clear on the terms of the influencer agreement

A very interesting ruling from the ASA this week where an influencer posted content without the brand's knowledge but the brand was still censured by the ASA. Showing that the ASA is sticking to the precedent set by the late Keith Chegwin tweeting outside of his agreement in 2013, and is essentially based on the commercial intent of a post needing to be clear, rather than a hard and fast reliance of the payment and control rule for advertising features.

Three people complained about a post that showed Lydia Elise Millen in a hotel room and mentioning her stay at The Savoy in London. Millen had a commercial relationship with Accor Ltd, the company that owns The Savoy, as part of a "Fairmont Ambassadorship" agreement, which required her to post content on Instagram in exchange for hotel stays. However, the TikTok post in question was not part of the agreement and was not paid for or approved by The Savoy. The ASA still considered the TikTok post to be a marketing communication due to its close association with the Instagram ad and the ongoing commercial agreement, and so was found to be in breach of the CAP Code as it did not clearly indicate that it was an ad. It's a reminder that if you're entering any agreement with an influencer it's vital that conversations are had about content posted outwith the agreement, (Accor (UK) Ltd 11 October 2023).

Don't make speed, even in pursuit of punctuality – the main message of a motoring ad

A tweet from Land Rover (LR) featured an image of a person in front of a blurred car with a quote reading "Fashionably late is out of fashion. Because 0-60 mph in 3.6 seconds can look like this". Complaints were made that the ad was irresponsible due to the focus on the vehicles speed and acceleration. LR argued that the intention was not to promote speed but punctuality. They also stated that the car was only travelling at 20mph and that the ad was shot on a private, closed road. The ASA took into account the blurred image of the car and found the ad in breach of the motoring code, as viewers could easily interpret it as the promotion of fast acceleration along with the lifestyle, thus interpreting it as fashionable. This viewpoint was further compounded by the text that accompanied the ad as it promoted accelerating in a positive light, (Jaguar Land Rover Ltd 4 October 2023).

As an aside, and not a point at issue in this investigation, social media posts from an advertiser's own account don't need to be labelled as ads because it's clear from the context what they are.

Remember to distinguish between in-app purchases and loot boxes

Complaints were upheld against Hutch Games Ltd's ads for "F1 Clash – Car Racing Simulator" and "Rebel Racing", on the basis that omitting to make consumers aware that they contained loot boxes was misleading. The games are free to download but contain in-app purchases, including loot boxes. The developer argued that it was possible for players to progress in the games without spending money and believed that the ads provided enough information because the ads state that there were "in-app purchases". However, the ASA concluded that the ads were misleading because they did not clearly disclose the presence of loot boxes specifically. Loot boxes are chance-based items that players purchase without knowing what they will receive, and the ASA's position is that they are significant in consumers' decision-making, and therefore their presence should be disclosed as well as the presence of in-game purchasing. Following consultation CAP published guidance on in-app purchases which covers such random item purchasing, (F1 Clash, Rebel Racing 4 October 2023).

Watch out - AI is on the hunt for ads trivializing surgery and exploiting the insecurities of humans

Five different cosmetic interventions clinics were flagged as part of the ASA's Active Ad Monitoring system, which uses AI to proactively search for online ads that might break the rules. The ads follow a theme, all being on social media, and ultimately being upheld for breach rules relating to social responsibility, as well as being likely to mislead consumers to the likely effectiveness of the procedures whilst also omitting key details regarding the need for a pre-consultation. CAP has previously published a detailed guidance note on how to advertise cosmetic interventions responsibly, and generally speaking UK advertisers don't tend to make these claims.

Aestheal Clinic promoted a package of five plastic surgeries for a price of €4999 and advertised additional services such as medical translation, accommodation, and transportation. Once identified by AI the ASA executive raised a challenge on the basis it made unrealistic claims about achieving the perfect body and exploited women's insecurities. The ASA also criticised the ad for pressuring consumers to book appointments before summer, and for failing to mention the need for a pre-consultation, (Aestheal Clinic 11 October 2023).

The ASA criticised Clincexpert Hospital's "70% Monthly Discount Opportunity" promotion on the basis it put undue pressure on consumers and was irresponsible. "Defined and strong hair in just one day" was deemed misleading and potentially exaggerated. Whilst "Waste no more days letting hair loss makes you lose confidence" exploited insecurities related to body image. Both ads failed to provide necessary pre-consultation information, (Dakik Saglik Medikal Turizm A.S. 11 October 2011).

GET DHI Hair Clinic's cartoon images showing a man with a receded hairline and another image with a full head of hair, and claiming of "99% successful results" whilst omitting important information about pre-consultation and suitability assessments was also found in breach. As was emphasising the travel aspect, which potentially downplaying the seriousness of the surgery and raised concerns about standards of care and follow-up, (GET DHI Hair Clinic 11 October 2023).

In particular the claim "Mommy makeover" was censured, for all that one advertiser argued that this may have become a "widely used" term for a series of procedures performed in the same surgical session (aiming "to restore the shape and appearance of a woman’s body after childbirth"). The ASA ruled that in the context of an ad for a package of cosmetic procedures, the claim exploited the insecurities of mothers about their body image and perpetuated pressure for them to conform to body image stereotypes, (UAB Forma Perfecta, Grand Clinic 11 October 2023).

How to mitigate these risks

  • Discuss the full scope of potential activities with an influencer
  • Consider the impression of an ad as a whole
  • Distinguish between in-app purchases and loot boxes
  • Avoid preying on insecurities
  • 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 would need legal advice.

Further Reading