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ASA rulings round up 20 December 2023

22 December 2023

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

Beware of unqualified carbon claims

"Beer for your Grandchildren. From the World’s First Carbon Negative brewery" was followed by instruction to check the Instagram account's bio page for a link for more information, which two complainants considered failed to make the basis of the carbon negative claim clear. The ASA ruled that the fact the link in the bio contained further information about BrewDog's carbon reduction and offsetting project was not sufficient and the information needed to be in the ad itself. Including the Positive Planet carbon negative badge within the image, which did not provide an adequate explanation, (BrewDog plc 20 December 2023).

Alluding to expletives will be deemed offensive unless you're very careful

A radio ad for a power tool supplier used "bleeps" of obscure certain words and phrases throughout in contexts where it appeared the person speaking might swear. The fact the voice actors hadn't said the words when recording wasn't relevant to the fact the ads would be interpreted as referred to a word so likely to offend that it should generally be used or alluded to in advertising to the general public, (Howe Tools Ltd 20 December 2023).

In another ruling, 11 people complained about a direct marketing email and two variations of a KFC poster ad which obscured parts of the well-known brand phrase "finger-lickin’ good" with an image of its fries on the basis it implied an expletive. Two of the ads contained various references to "finger-lickin’ good" which were not obscured, and the ASA considered that in this context it was clear what the obscured words were meant to mean. The third ad did not include the full phrase and the ASA ruled that in the absence of further wording to make immediately clear to viewers that the obscured wording was “finger lickin’”, and that the ad alluded to an expletive, and upheld the complaint for that ad. (Kentucky Fried Chicken 20 December 2023).

Ensure the evidence matches the claim

A trio of rulings against three healthcare companies which advertised intravenous (IV) drips, with claims such as "optimise vital hydration balance and maximise your wellness & efficiency. Whether looking to boost your immune system",  “BODY BUILDER Muscle Builder”; “PRE-FIGHTER Energy Release”; “IMMUNO-BOOST Immunity Support” and “Energy Drip”; “Immunity Drip”; Detox Drip” breached the CAP Code for making claims about the health benefits of IV drips which could not be substantiated. One of the advertisers sought to rely on health claims that can be made in relation to food products, but IV drips are not classified as foods. In all instances the advertisers provided extensive documentation but much of referred to the effect of the nutrients such as Vitamin C in the body, and didn't include a causal link to the IV drip (as opposed to supplementation), or didn't relate to the target audience of healthy individuals, (GMG Pharmacy Ltd, Get A Drip Ltd, and REVIV UK Ltd 20 December 2023).

Don't make health claims about tanning beds

Although NHS guidance is that most adults in the UK need to supplement with vitamin D, it does not recommend using a tanning bed. Unsurprisingly the ASA upheld its own challenges against two ads, which opined the health benefits of tanning beds on the basis they were misleading and irresponsible. In both cases the advertiser had failed to avail itself of the social media platform's 'Audience Control' toggle which meant the ad had been served to under 18s which is prohibited, (Person(s) unknown and Golden Tanning Salon 13 December 2023).

How to mitigate these risks:

  • Include an explanation of the carbon claim in the ad
  • Consider the the effect of the word alluded to, not whether it was actually said
  • Don't conflate product categories when collating evidence
  • Have a critical friend assess evidence 
  • 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