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ASA rulings round up 13 September 2023

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

Don't endorse products without checking that you can

A plethora of rulings against ads for nicotine-containing e-cigarettes and their components on social media is a reminder that the CAP Code reflects the Tobacco and Related Products Regulations (TRPR) which prohibit on the advertising of unlicensed, nicotine-containing e-cigarettes in certain media. Although factual claims about products can be made on advertisers' own website, nicotine-containing e-cigarettes cannot be advertised in online media or electronic media. "Electronic media" is defined, but the ASA has consistently interpreted it to include paid social media placements (ads for these products are also banned in newspapers, magazines, and periodicals – but are allowed in cinema ads). These rulings also show that the ASA is continuing with its project based approach targeting specific issues with ASA challenges rather than relying on receiving complaints, (Innofly HK Ltd, The Disposable Vape Store, Vapes-Bars Ltd, ZOVOO (Shenzhen) Technology Co Ltd 13 September 2023).

Don't advertise prescription only medicines (POM) to the public

Unlike in the USA, advertising POMs to the public is prohibited in Europe and the UK. The prohibition applies regardless of the type of POM or the medium on which it's advertised, and has a very limited carve out designed by the MHRA when it comes to describing products and service on the advertiser's own website. This week we see an aesthetics company advertising a POM facial filler, and an ad on Etsy for a B12 vitamin injection kit breaching this rule. The latter ruling reminding everyone that all vitamin B12 injection kits are POMs and whether or not the word "injection" is specifically used in the ad will not make a difference if that is what the product is, (Birmingham Aesthetics 13 September 2023, OrganicSupplies GB 13 September 2023).

Hold evidence for all claims

Claims for a "health coaching programme" which indicated the advertiser could aid in myalgic encephalomyelitis (ME), (also known as Chronic Fatigue Syndrome (CFS)) recovery were investigated following complaints from consumer and the ME Association. The case highlights the need for advertisers to interrogate their own evidence as it would be reviewed by a third party or regulator. Whilst some of the documents provided reflected positively on the programme and its practitioners, they were not focused on the application of The Chrysalis Effect to people with ME/CFS and therefore was not applicable to the claims under investigation. Another study provided stated that it had been difficult to draw meaningful conclusions from the data collected and noted a number of reasons including: small sample size, short duration of the study, selection bias resulting in participants who were not representative of the general population, no control group being used and group allocation having not been randomised. Furthermore, none of the participants were in recovery. The ASA ruled the claims misleading in the absence of sufficient evidence, (The Chrysalis Effect Ltd 6 September 2023).

Don't describe products as 'free' unless they're completely free

If a consumer has to pay anything other than the unavoidable cost of responding and collecting or paying for delivery of the relevant item, a product should not be marketed as "free". In this instance, ads implied that parasols and "egg chairs" were "free" when in reality consumers had to meet a minimum order value to obtain them. Requiring a minimum spending to get a free item is possible, but it must be explicitly clear in the ad what must be done in order to be able to claim a promotional item, (AOS Trading Ltd, 6 September 2023).

Remember the use of parody will not circumvent the risk of causing fear and distress

An ad on social media as well as a language learning app and a games app for a vegan campaign charity was presented in the upbeat tone of a yoghurt ad and featured a graphic and gory depiction of blood and offal meat being mixed into a yoghurt and then eaten. The ad was ruled in breach of the Code for being likely to cause fear and distress and was inappropriate for a general audience as the degrees of fear was not justified. In addition the ad was found in breach for allowing the ad to be placed in apps that were likely to be seen by children. Historically the ASA tended to give more leeway to charities when it came to deciding whether the reason for causing fear or distress was justifiable or not, however since research in 2013 indicated that adults were not in fact as supportive of shock tactics in charitable ads as had previously been expected, the ASA has adjusted its position, (Viva! 6 September 2023).

How to mitigate these risks

  • Undertake due diligence into a product before agreeing to advertise it
  • Ensure evidence has been reviewed with a critical eye
  • Make clear your identity and status as a third party advertiser
  • Don't describe a product as free when it is not 'free'
  • Consider whether the potential to cause fear and distress is justifiable beyond merely attracting attention
  • 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 would need legal advice.

Further Reading