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ASA rulings round up 25 October 2023

26 October 2023

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

Watch out IT systems aren't causing incorrect prices to display 

We've already seen at least one ad go awry after a website refresh this year, last time it was prohibited ads for restricted products being generated, this week it was savings claims being pulled automatically from the wrong section of a website. An expedition cruise company advertised a Northern Lights Expedition Cruise from London with a crossed-out price of £4,932, suggesting a discount. A customer who had booked the cruise at a lower price complained because they had never seen the expedition sold at the claimed reference price. The ASA considered that consumers would interpret the crossed-out price as the usual selling price, leading them to believe they were getting a significant discount. The advertiser explained that the claim had been made in error as a result of updated IT systems which was to be corrected urgently, but wasn't able to substantiate the savings claim by showing the cruise was usually sold at £4,932 and the ASA ruled the ad misleading. A reminder that whilst the machines can help, it's always worth ensuring someone has double checked their work, (Hurtigruten UK Ltd 25 October 2023).

Be extra generous with context when making environmental claims

Repsol, one of the three companies subject to ASA rulings in June has had another run in with the ASA, this time regarding a paid online display ad promoting renewable hydrogen. It was another complaint raised by Adfree Cities (a network of groups across the UK who are concerned about the impacts of corporate advertising on health and climate issues, and as the name suggest ultimately wish for cities to be adfree altogether). Despite the fact that it is unlikely the ASA agrees with Adfree Cities overall policy, they did agree that the ad was misleading on the basis it considered that it failed to provide important information about Repsol's overall environmental impact.

So whilst Repsol's response emphasised the importance of renewable hydrogen in their business activities and the transition away from fossil fuels, the ASA found the ad to be misleading because it did not explain what proportion of Repsol’s overall business model comprised lower carbon energy, (Repsol SA 18 October 2023).

Be clear on what fuel is being used to power your cars

Four complaints prompted the ASA to investigate two TV ads for Nissan's Qashqai and X-Trail models. One showcased stylized footage of the car driving through a city at night, highlighting the excitement of electrification. The second ad also featured The Flash (a DC superhero) running around Nissan cars and leaving a trail of sparks. Both ads claimed that the car used "e-Power," a new electric technology that did not require plugging in like other electric vehicles and included claims like "no need to plug in" and "get your own electrified superpower".

Whilst the car only drove using an electric motor, it nonetheless required petrol because "e-Power" technology uses an electric motor powered either directly by petrol or by a battery recharged by petrol. Although some additional information (“*e-POWER comprises a 100% electric motor-driven system, powered by a lithium ion battery and a petrol engine”) was provided, the ASA did not consider that the average consumer would understand from this the extent of the role petrol had in powering the car. The emphasis on electricity in the ad overall was a factor in this and the ASA ruled that future ads must make the nature of a vehicle's power source sufficiently clear. The concerning element of this ruling is that the ASA stated that by "focusing on the car’s use of electricity, consumers were likely to understand that the car was a better choice for the environment than traditionally fuelled vehicles" – even though the ads did not contain any explicit claims in relation to the car’s environmental impact. This comment doesn't appear to have impacted the rationale for the ruling overall, but it's concerning that claims that haven't been made are being picked up, (Nissan Motor (GB) Ltd 18 October 2023).

Location precision is key for travel advertising

In the early days of budget airlines, the ASA published rafts of rulings for ads advertising flights to airports referring to capital cities – which were in fact miles away. Although advertising in the sector has become much clearer, the issue still occurs. In this instance the claim "Leaving from Venice (Ravenna)" generated an investigation after the complainant pointed out that Ravenna is over two hours away from Venice by car. The ASA considered that consumers would likely assume they could travel to Venice to join the cruise, but in reality, they would need separate transport to reach the actual departure port in Ravenna. The ASA determined that the ad breached rules on misleading advertising and qualification. The advertiser had proposed reversing the qualification to "Ravenna (Venice)" however the ASA concluded that this would still mislead consumers into thinking that the departure point was in Venice – which was not the case, (Royal Caribbean Cruises Ltd 25 October 2023).

Watch out for how presentation impacts potential classification

It's easy to see how those outside the consumer healthcare and life sciences sphere might not realise the software can be a medical device, and that claims to treat conditions or the symptoms of conditions can be medical. However the Medical Device Regulations 2002 specifically include software within the definition of medical devices. In this case an ad for an AI powered app intended to help people with ADHD was found to breach the Ad Code for a non-registered medical device and discouraging essential medical treatment. Presenting the problem in the context of a medical concern "my ADHD brain doesn’t know what to prioritize” and giving the app as a solution “It’s the best way to get organized when you have ADHD” essentially made medical claims for the product which was not a registered medical device and did not meet relevant conformity requirements. 'Medical' claims don't need to relate to diseases but to conditions for which medical supervision should be sought, (Nexusbird Inc 18 October 2023).

Think about what general knowledge your audience may possess

An ad for a Princess Diana commemorative coin was challenged on the basis it implied the coin was made exclusively from 24-carat gold. The advertiser noted that the ad included information that the coin weighed one two-hundredths of an ounce and being made of 24-carat gold, with a diameter of 40 mm. It believed that the ad accurately represented the coin's characteristics, as it provided evidence of gold purity and a certificate of authenticity. The TV pre-clearance body Clearcast, agreed with the advertiser, stating that the ad gave an accurate overall impression of the coin. They argued that the thickness of the coin was not relevant to viewers' purchasing decisions.

The ASA considered that consumers would expect a commemorative coin's dimensions to resemble those of legal tender coins, and not that they would be significantly thinner and so concluded that the ad was misleading because it implied the coin was a typical 40 mm coin when it was not, (HMK V AG – Windsor Mint 18 October 2023).

How to mitigate these risks

  • Don't rely entirely on automated systems for pricing accuracy
  • Consider how a regulator might interpret the copy looking at the ad as a whole and what it might consider to be implied
  • Don't include references to locations which are not included in the cruise
  • Make sure the classification of an app has been assessed
  • Consider the audience's likely general knowledge
  • 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