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ASA rulings round up 30 August 2023

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

Health claims cannot be made for alcohol

In this case the advertiser made the argument that "Skinny Rebel" referred to the fact the "skinny" products in their range had half the energy of their other products and therefore met the requirements for a "reduced energy" nutrition claim. This would be a comparative nutrition claim, these are notoriously tricky and require specific additional information to be included in advertising. The ASA noted that the advertiser hadn't provided evidence that it met the requirements for a "reduced energy" nutrition claim, which requires that energy has been reduced by 30% compared to other similar products, so this claim would not be compliant. The ASA disagreed and ruled that consumers would see the claim as meaning that the product could help to maintain or lose weight, or could help to maintain weight when compared to alternative products. Weight control claims are classified as health claims and therefore the ad breached the Code, (Rebel Wine Ltd 23 August 2023).

Unregulated financial products need to meet Ad Code requirements

Ads which included claims regarding whisky cask investment such as "Cask Investment Get Returns up to 12% Per Annum”, "We help investors get involved in a billion-pound market that has shown average returns of 8-12%*", "Over the past ten years, rare whiskey prices have increased by an impressive 586%***" and "Earn up to 13% per annum*" breached the Ad Code for failing to provide adequate substantiation and for not including required information. Financial products which are not regulated by the Financial Conduct Authority must follow the Ad Code – which requires that ads for investments make clear that the value of investments is variable and, unless guaranteed, could go down as well as up, and also that significant limitations and qualifications are stated and presented clearly. The ASA ruled that the fact that whisky cask investments are unregulated, fees were associated with the purchase, ongoing ownership and exiting of the investment, as well as that the fact terms and conditions to the purchase of a whisky cask, were all material information that consumers required in order to make informed decisions and the omission of this information was misleading, (Blackford Casks Ltd 23 August 2023, London Cask Co Ltd, 23 August 2023).

Watch for unexpected outcomes when updating or refreshing technical aspects of webpages

In this instance the advertiser's website refresh meant that products which had previously been actively excluded from being automatically pulled from it's website through to Google were no longer blocked, which meant that ads for infant formula appeared. Although infant formula may be sold from e-commerce sites, advertising it is prohibited and an upheld ruling from the ASA followed, (Boots UK Ltd, 23 August 2023).

Hold evidence for claims to treat health conditions

Two acupuncture ads were found misleading because the advertisers were unable to provide appropriate substantiation for claims to treat long COVID or its symptoms. One advertiser provided excerpts from articles, but the ASA will always require the full article to be provided. In this instance the excerpts were enough for the ASA to rule the full studies did not support the claims made that "Gentle acupuncture ... can chip away at the fatigue, brain fog and gut issues to support healing". The other advertiser pointed to information from the British Acupuncture Council (BAC), but on investigation it turned out that BAC had started to collect data to measure the effect of acupuncture on long COVID, it was too early for results from clinical trials. The rulings are part of a wider piece of work on long COVID treatments identified for investigation following intelligence gathered by the ASA, so we're likely to see more of these, (Peachy Acupuncture 30 August 2023, Serenity Acupuncture 30 August 2023).

Sexually explicit products can be advertised if a responsible approach is taken

Ads must not contain anything that is likely to cause serious or widespread offence, however the fact that a product is offensive to some people is not grounds for breaching the Codes. A poster ad campaign for a social media influencer's Onlyfans page prompted 30 people to complain to the ASA on the basis the ad was inappropriate for display in an untargeted medium where children could see it and sexualised and objectified women. The advertiser argued that her posters, which contained the Onlyfans logo, were akin to other lingerie adverts, and that children would not know about Onlyfans and the sexually explicit content which was available on the site. The advertiser had evaluated the market and ensured the ad was reviewed by people outside the glamour industry, noting less provocative than mainstream lingerie or perfume brand advertisements. The ASA ruled that whilst the posters could be considered mildly sexual, they did not feature any nudity. Also, as the ads were not overtly sexual and did not objectify women, their proximity to schools was not considered relevant (which indicates that although a 100m restriction had been applied, it wasn't necessary). The complaints were not upheld, (Eliza Rose Watson, 23 August 2023).

How to mitigate these risks

  • Remember the rules on nutrition and health claims are even tighter when it comes to alcohol products.
  • Be aware of the classification of the financial product advertised and the rules to be applied.
  • Ensure exclusions and ad blocking systems are included within internal processes.
  • Check that you hold the evidence and make sure it's been interrogated.
  • If advertising a controversial service be prepared to defend it.
  • Call your friendly neighbourhood advertising and consumer products lawyer to get help with most of the above (and connect you to the right financial regulatory advisors too).
Please contact our authors Katharine Mason or Dominic Watkins if you have any queries or would need legal advice.

Further Reading