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ASA rulings round up 8 November 2023

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

It is possible to deal with sensitive issues when appropriately prepared

The ASA received 136 complaints about advertisements by Dove and its Self-Esteem Project, which aims to raise awareness about the negative impact of social media on body image and eating disorders. Complainants were concerned that the ads were irresponsible and distressing, in particular to those affected by insecurities about their body image or those affected by an eating disorder.

The longer version of the ads was shown on TV and video-on-demand. It showed the journey of a young girl's interactions online, engaging in behaviour associated with eating disorders, and watching social media content that glamorised a thin body type, scenes from inside an eating disorder treatment unit then describing her as being 'in recovery from an eating disorder'. The ad finished with a call to action to help protect the mental health of children. The two other ads were also shown on TV and VOD and were a shorter version providing slightly different information. In each case the ads started with a content warning regarding the issues featured in the ad.

Unilever conducted research and sought guidance from experts to ensure responsible portrayal. This included a range of experts, the Centre for Appearance Research, and past users of the Maudsley Hospital and King’s College London’s eating disorder support services to ensure they were comfortable with the ads. Experts and charities were conscious that the ads may trigger audiences and had made various recommendations to limit that risk while still retaining the ads’ core message which Unilever set out in their response, as well as the outcomes from their studies which showed the impact of social media on mental health. Interestingly, Unilever requested manual review of which programmes the ads would air during and voluntarily set scheduling restrictions.

The ASA ruled that the ads complied with the Ad Codes. It acknowledged the subject matter could be difficult for members of the wider public to watch, but considered the context of the overall message, as raising awareness and promoting support, was likely to be understood and did not cause unjustifiable distress, (Unilever UK Ltd 8 November 2023).

ASA's AI is still looking for ads that might appeal to under 18s

Another ruling prompted by the identification of ads for investigation using an AI-powered system called Active Ad Monitoring, which resulted in an upheld ruling for a gambling advert that strongly appealed to individuals under 18 years old. The rule is based on the principle that under 18s should not be drawn into gambling.

Three tweets from Betfred promoted an upcoming fight featuring former world champion boxer Anthony Joshua. Betfred considered the ads posed a low risk of appealing to under 18s, citing their thorough risk assessment and age-gated social media channels, they also pointed out that CAP guidance is that boxing is not generally assumed to be popular with under 18s. Betfred provided social media data to show that Anthony Joshua's followers were predominantly adults, but the ASA made a holistic assessment of his appeal based on media profile, endorsements, and social media presence, and ruled he would have a substantial following of under 18s. This was compounded by the absolute number of followers that Anthony Joshua has on social media, which is flagged by CAP guidance as being a key component of strong appeal to under 18s and was a deciding factor in last month's decision that Gary Neville also appeals to under 18s and should not feature in a gambling ad. The ASA considered that 280,000 followers that were potentially under 18 was a significant number in absolute terms (Gary Neville's was estimated at 135,000), (Petfre (Gibraltar) 1 November 2023, Bonne Terre Ltd 18 October 2023).

Covid claims continue to be challenged

The ASA is continuing to lean into proactive project work continuing the trend of ASA challenges and changing the risk profile for ads because the likelihood of a complaint is no longer the only thing to think about. The ASA's work on long Covid treatments via Hyperbaric Oxygen Treatment (HBOT) is an example of this with two rulings this week. In both cases the advertisers provided evidence for the claims, but on the ASA's investigation it deemed not to be sufficient. One clinic provided a study which showed significant improvement to both fatigue and some cognitive outcome measures, but the ASA deemed the sample size too small and noted there was no control group and the study was not blinded. The other clinic provided a variety of data but the results did not correlate with the claims made in the ad, (Indiralaxmi Vignesh Ltd 8 November 2023, NUMA Ltd 8 November 2023).

An accredited manual does not an accredited course make

The Joint Council for Cosmetic Practitioners (JCCP) raised concerns an ad for a training course on aesthetics procedures, stating that it lacked important information about the course's nature, requirements, qualifications, and potential professional registration details. The JCCP also challenged the claims that the course was fully accredited and offered full qualifications, suggesting that these claims were misleading and needed substantiation. The ASA agreed on all these points and ruled that the ad misleadingly implied that completing the course would make students fully qualified, when in reality, it was an introductory course requiring further training and experience. The ad also made reference to achieving a qualification, when in fact students would receive a CPD certificate, (TJC & BLC Aesthetics Clinic & Training Academy 8 November 2023)

Don't advertise prescription-only medicines (POMs) to the public

An online pharmacy search ad appeared when searching for "Ventolin" was subject to a complaint on the grounds of promoting prescription-only medicines (POMs) directly to the public. The advertiser did not believe the ad promoted POMs or contained terminology referring to them directly. They said searchers would have prior knowledge distinguishing them from the general public, meaning the ad targeted a specialist audience. Given that asthma inhalers are not available over-the counter and are all POMs, the ASA considered that the reference to the inhaler was promoting a POM. It choose not to comment on the idea that someone undertaking an internet search for a medicine was therefore a specialist.

The ASA ruled the ad breached rules prohibiting advertising POMs to the public. The mention of "Ventolin" and asthma inhaler prices implied the ad offered POMs without needing a consultation. References to an "online treatment service" also implied POMs would be the outcome, (Dr Rani Ltd 1 November 2023).

Do not promote unlicensed e-cigarette products

The Tobacco and Related Products Regulations (TRPR) prohibits advertising of unlicensed, nicotine-containing e-cigarettes in certain media which includes online media – and is interpreted by CAP and the Department of Health and Social Care as including social media posts. The only way to advertise a nicotine-containing product on social media is if it is a licensed medicine. Five rulings on the promotion of unlicensed nicotine-containing products on social media show the practical challenges in effectively moderating advertising for prohibited products to ensure they aren't published, and ensuring that new entrants into the social media sphere are alert to what is and isn't allowed.

In all circumstances they fell at the same hurdle in terms of promoting an unlicensed e-cigarette or e-liquid but were varied in terms of content, for example videos of:

  • someone dreaming about a store filled with colourful vaping products set to music (Daniels Vapes 1 November 2023)
  • a military-style badge and silhouetted figures marching while music played. Text in the ad stated "Endless flavors limitless choice fast UK delivery unbeatable prices thousands of products thegreatevape.com" (TheGreatEvape Ltd 1 November 2023)
  • an influencer opening a box of Geek Bar vapes and explaining that she had content lined up for the next couple of days and weeks and then describing the benefits of using this particular vape brand. (Geekvape Electronic Cigarettes (UK) Ltd 8 November 2023)
  • an influencer saying they'd had a present delivered and proceeding to explain and describe the vape and what comes with it. (Vaporesso 8 November 2023)
  • showing an 'unboxing' of a nicotine-containing vape, linking an nicotine-containing product with a competition, and making claims about the product 'it’s just dead simple to use, like, you’re ready to go […] it's rechargeable, it’s dead small […] yeah, I’d recommend it to everybody because it actually is, like, really really good.' (Voopoo International Inc 8 November 2023)

How to mitigate these risks:

  • Remember to check absolute numbers of followers when assessing appeal to under 18s
  • Have a critical friend assess evidence
  • Be clear on the nature of the educational course on offer
  • Get a second view on whether your ad will be interpreted as promoting a POM or not
  • Do not promote unlicensed products in a regulated market
  • 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