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ASA rulings round up 5 July 2023

11 July 2023

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

Qualify those claims

Ads must not mislead by omitting key information by exaggerating claims. Often failing to include information which explains the claim will lead to it being exaggerated. Even where the claim is factually accurate, this principle can trip advertisers up because  results are only achievable in specific circumstances, failing to explain the circumstances could cause the ad to be misleading. An added cause for concern is that when companys are extremely well-versed in their claims and products they may think that something will be assumed by the consumer or easily understood by them whereas the ASA will disagree and require it to be explicitly stated in the advertising. Two rulings against claims concerning the time it would take to charge an electric car show this clearly, and also point to the fact that anything linked to the environment is under scrutiny.

The claims "10% to 80% charge in 18 minutes using 350kw charger" and "80% charge in around 30 minutes* with a 150 kW fast-charging system, charge through a fast charging wallbox which can be installed at home, or plug into a socket at home" were found to be misleading because they were focused on the best possible performance, and didn't make clear that in fact rapid charging systems (whether 350 kW or 150 kW) are not widely available across the whole of the United Kingdom, and that there are a variety of factors which could impact battery charging time in the ads needed to make clear the conditions under which the figures were achieved. This was the case here, not withstanding the fact that the asterisk in the second claim linked to information stating “*Charging times subject to local circumstance. Rapid charging power ratings can vary by location” (Hyundai Motor UK Ltd 28 June 2023 and Toyota (GB) plc 28 June 2023).

Stay accurate with price claims

Savings claims need to be based on a price at which the product was sold. A teleshopping channel provided a fairly extreme version of getting this wrong when presenters claimed that one product selling for £399 would usually be £5000-£6000 without evidence that this was the case. Claims relating to another necklace, which started at £199 on the television and went down to £79.99 were found to be misleading because it was available for £57.99 on the advertiser's website on the same day, (Gemporia Ltd 5 July 2023).

Preparation is key

In contrast with the not upheld ruling on the ad featuring Chris Eubank Jr (see our round up here), in this instance the use of Jake Paul in a promoted tweet was ruled to breach the CAP Code on the basis of featuring someone who was likely to be of strong appeal to under 18s. The advertiser provided data regarding Jake Paul's followings on social media, but the ASA looked beyond the percentages to the figures, noting that 3 million followers are under 18 on YouTube, TikTok and Instagram. It also considered the fact he had started boxing (which doesn't usually appeal to under 18s) after becoming known as an YouTube content creator (who did appeal to under 18s) to be significant, as was his appearance in a television show about two teenagers which is still available to stream in the UK, (LC International Ltd 5 July 2023).

Step away from the objectification

Objectifying people in advertising is when they stop having agency and are simply decorative objects in the ad or the basis of a joke or simply, titillation.  While most objectification is obvious, it does go much further than you might think, including where only part of the person is displayed and their face cannot be seen, while clearly context is key, this means that if the faceless person is just there as decoration – quite literally as an object in the ad – then that will be enough for it to be considered objectification.  The ASA will consider a variety of factors, including whether or not the depiction is relevant to the product and the purpose behind the visual. In this instance, a fitness company's ad in which only the woman's legs could be seen, combined with the position she was in and resulting innuendo meant that the ASA upheld complaints that the ad, although funny to some, objectified women, (RH Fitness Ltd 28 June 2023).

How to mitigate these risks

  • Consider what additional information may be necessary in the ad
  • Ensure everyone in the team has been trained on the rules
  • Prepare your rationale for including a celebrity in a gambling ad
  • Consider the audience as a whole when making a sexually charged joke
  • Call your friendly neighbourhood advertising lawyer to get help with all of the above

Please contact our authors below if you have any questions.

Further Reading