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ASA rulings round up 6 December 2023

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

Active Ad Monitoring continues to catch environmental claims

The ASA's Active Ad Monitoring (AAM), which utilises AI to flag adverts that could breach rules, has been busy with airlines ads which were found to make misleading claims in relation to environmental impact. We've been noting the AAM initiative in these round ups as we go, but it's worth flagging its wider impact. Specifically, when it comes to assessing risk of complaint about an online ad, any previous tendency to rely on what will catch the eye of a consumer or agitate a competitor should be reconsidered. Using active monitoring is seen by the ASA as a way to level the playing field online, and it's certainly throwing up claims which would probably have been subjected to greater scrutiny if considered for a TV ad. Unsurprisingly, we haven't seen a ruling go the way of the advertiser when it's been picked up by AAM. So the risk of getting an upheld ruling against an ad has, since the introduction of AAM has become much higher.

Now, on to those green claims:

Etihad Airways: "Environmental Advocacy", "Total Peace Of Mind" were challenged and the airline removed all references on contact from the ASA. In light of this, they didn't go into detail on the provenance of the claims, which were found to be misleading, (Etihad Airways 6 December 2023).

Lufthansa: "…fly more sustainably", the advertiser explained that this was based on its "Green Fares" option which passengers could select on European flights. Choosing this option would reduce 20% of flight-related emissions by using sustainable aviation fuel, and that Lufthansa would offset the remaining 80% by contributing to other green projects. The ASA ruled that omitting this information explaining the comparative claim meant that it was misleading and the claim shouldn't be made in media where limited space meant it could not be included, (Deutsche Lufthansa AG 6 December 2023).

Air France-KLM: "…Air France is committed to protecting the environment: travel better and sustainably", in the absence of any evidence at all being provided to substantiate, it was ruled misleading, (Air France-KLM 6 December 2023).

Further scrutiny for green claims

As the airline rulings show, making environmental claims for products which are generally known to have a negative impact is going to pique the ASA's interest, which is further borne out by the car manufacturer which claimed "Rethink Hybrid… Up to 80% electric driving in the city”. Unfortunately the wrong qualifying information was included so there was an inaccurate reference to third party rather than internal testing. However, regardless of this point, the meaning of the claims wasn't explained, and given the ASA noted various interpretations were available, ruling it misleading, (Renault UK Ltd 29 November 2023).

Responsibility can bite without control

An influencer, Saira Hayati made unauthorised health claims in a post promoting Celtic Sea Salt (e.g. including the ability to alkalize the body, balance sugar levels, improve brain function, eliminate mucus build-up and to not raise blood pressure). The ASA upheld the complaint that these claims were unauthorised health/nutrition or disease risk reduction claims, but ruled against the brand on the basis the that the posts included affiliate links via the TikTok shop even though there was no other commercial relationship in place. No disagreement here that the posts were ads, or the claims were unauthorised, but it's a perhaps counter-intuitive that the brand was named as advertiser rather than the influencer in this instance.

In case you're wondering, currently, the only authorised claim relating to salt on the GB nutrition and health claims register is "Reducing consumption of sodium contributes to the maintenance of normal blood pressure", all the other salt claims listed are unauthorised, (South African Foods Ltd 6 December 2023).

The extent of a rainy day policy needed to be stated

A promotion on the Alton Towers website offered a "Rainy Day Guarantee", allowing visitors to return for free if the weather affected the customers experience of the theme park, so long as customer booked directly through the Alton Towers website. A customer complained to the ASA after they sought to claim under the policy and found out that the day had not been rainy enough to trigger the policy. The theme park noted that the guarantee would only be invoked after an hour of continuous rain, and provided evidence which broadly showed that while the weather hadn’t been ideal, it had not rained continuously that day for more than an hour.

The ASA considered that the claims made in relation to the policy would mean that if the consumer had a qualifying ticket (as specified in the ad), if adverse weather during their visit led to closure of one or more rides for any period of time, they would be entitled to a free visit another time. The definition of rainy day in the policy was material information which ought to have been in the ad, (Merlin Attractions Operations Ltd 29 November 2023).

How to mitigate these risks:

  • Undertake a holistic review of all green claims across all media
  • Put in checks and balances for environmental claims
  • Monitor people using your affiliate links
  • Check what terms in any customer guarantee policy might need to be brought into the ad
  • 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