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ASA rulings round up 21 June 2023

22 June 2023

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

Make ads obviously identifiable 

Marketing communications must be obviously identifiable as such, i.e. people need to know that they are looking at an ad. Although it purports to allow other labels, over the years, the ASA has made it clear that the only label which is safe is #ad. In this recent case, the advertiser had include #ad but it was at the end of post so would only be read once the user clicked on "more". This is in line with previous rulings from the ASA, which takes the view that "obviously identifiable" means the consumer shouldn't have to do anything to know that they are looking at an ad. What's interesting, is the explicit decision that because the celebrity had a commercial relationshipwith Visit Qatar to promote tourism, the ASA ruled that they were therefore jointly responsible for ensuring that marketing activity conducted on the Instagram account was compliant with the CAP Code. In the past the ASA has oscillated between ruling against the advertiser or the influencer so it will be interesting to see if joint responsibility carries forward to other rulings. (Qatar Tourism 14 June 2023)

Preparation is key

Some age-restricted products, such as gambling, have age-restrictions in terms of their content and targeting. For instance, gambling ads cannot be directed at people under 18 (in some cases 16), include anyone who is or looks under 25 or be of strong appeal to children or young persons. When it comes to choosing people to feature in adverts, the third one can be tricky because there's a degree of subjectivity. It's important to have a clear rationale for why you think an individual won't appeal to young people and be prepared for a challenge on that point. Preparation certainly paid off for bet365 when the ASA accepted its analysis for using Chris Eubank Jr in a gambling ad. The advertiser provided robust substantiation for why it didn't think the boxer appealed to persons under 18s and therefore could be used in a gambling ad. The advertiser provided data on Eubank Jr's following across social media and referenced previous ASA rulings on this point. (Hillside (UK Sports) ENC 14 June 2023)

"Free cancellation" might not be "free" if redemption is complicated

An airport parking ad claiming "Flextras: free cancellation… amend or cancel your booking up to your booked arrival time, without any fees" was ruled misleading because it didn't explain that rather than receiving a refund, customers would either need to claim a voucher and then redeem it for a refund, or accept a combination of a voucher and credit to book again (depending on the time period). The system wasn't a problem in and of itself, but the ad didn't give any indication of the process. The ASA found it omitted material information, and that by keeping some of the cost aside to book parking in the future, the advertiser was essentially applying a fee. In these circumstances the ASA applied the rules on omitting material information (rule 3.3) and qualifying claims (rule 3.9). Yet, it's worth noting that the CAP Code also requires that ads must make clear the extent to which the consumer must make a commitment to take advantage of a "free" offer. This, along with other specific rules for using "free" set out in 3.23 – 3.26, is always worth bearing in mind. More information in the ad probably would have helped in this case. (Purple Parking 21 June 2023)

You can't change the terms once the customer has purchased

In contrast, a travel agent's attempt to charge the customer a higher price, once the customer had already booked and paid for their flight, wouldn't be assisted by additional information. Dynamic pricing is well-established in the travel industry and consumers know that prices can fluctuate. However, the fact that a real-time seat availability issue with the supplier meant the price increased before the agency itself could purchase the ticket wasn't an acceptable reason for requiring the customer to pay an additional sum once they had paid the original price in full and received a confirmation email. On this basis the original ad was ruled misleading. As one may expect, the ASA only covers advertising and not contract law, hence no mention of the contractual implications in the ruling. (Traveldecorum 21 June 2023)

Contextualise those environmental claims

We saw more ASA rulings which took wider business activities into account when ruling on claims within ads. Read our summary on the subject and see our (Consumer) sustainability hub for more information.

How to mitigate these risks

  • To avoid a challenge, put #ad at the front of the post 
  • Prepare your rationale for including a celebrity in a gambling ad
  • Make sure the extent of any commitment is clear
  • Don't attempt to change the terms once a customer has purchased something
  • Call your friendly neighbourhood advertising lawyer to get help with all of the above

Please contact our authors Katharine Mason or Dominic Watkins if you have any queries or would need legal advice.

Further Reading