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ASA rulings round up 17 January 2024

18 January 2024
The DWF consumer regulatory team take you through the key lessons from the last fortnight.

A youthful look isn't necessarily a positive thing

Section of the Ad Codes relating to restricted products and services include additional advertising barriers to ensure younger people are not encouraged to take up particular activities. An example is that ads for gambling products, including bingo, cannot feature someone who is under 25 or appears to be under 25. Appearing to be under 25 is a subjective assessment which means that even if an advertiser has evidence of an individual's age, if they look under 25 the ad will be in breach.  

A TV ad for a bingo game featured a testimonial from a man identified as a "postgraduate student" who expressed enthusiasm for the bingo games. The ad was challenged for potentially featuring someone under 25, the advertiser provided proof that the individual was 25 at the time of filming, and Clearcast verified his age. However, the ASA upheld the complaint, stating that the man's youthful appearance, speaking style, and the on-screen text "postgraduate student" gave the impression that he was under 25, thus breaching the BCAP Code, (HappytigerApS 10 January 2024).

Double check the calculation when claiming to save customers money over competitors

A broadband provider's claim that customers could save over £240 a year by switching to their Full Fibre 150 service, from BT's Fibre 1 Service, was ruled misleading after the ASA checked the advertiser's arithmetic.

The claim compared 24-month contracts but the calculation of the savings claim did not take into account the cost of the advertiser's contract for the second year, only that of the competitor. Additionally, the advertisement's small print revealed that the discounted rate of £19.95 per month was not guaranteed beyond the initial 12-month offer period, further undermining the claimed saving, (Zzoomm plc 10 January 2024).

An illegal activity is still illegal regardless of enforcement levels

The ASA has previously upheld complaints against ads for e-scooters which did not make it clear that the use of privately owned e-scooters on public road is illegal except in specific and limited circumstances.

This time it was an online ad's references to lack of enforcement on e-scooter use and obfuscation around their legal status which was the crux of the issue.

The ASA referred to the Department of Transport's guidance, which stated that privately owned electric scooters could only be used on private land with the landowner's permission. The ad provided information on the legality of electric scooters and their potential use on public roads, but simultaneously made comments such as "…it’s believed the police are taking a lenient view on e-scooter use unless they’re being used recklessly…". Text on the website also suggested that the rules surrounding riding scooters on public roads would soon change – which reinforced the impression that private use on public roads was currently allowed. Additionally, it ruled the ad conveyed a sense of leniency in law enforcement, implying that rules could be ignored if riders were cautious and sensible. As such, the ASA deemed the ad to be misleading and irresponsible and upheld both complaints, (E-Scooters 4 Less 17 January 2024).

Ensure advertisements depict the product being used safely – especially if it's a product for children

Rule 5.1 of the CAP Code states that marketing communications addressed to, targeted directly at, or featuring children must contain nothing that is likely to result in their physical, mental or moral harm. Rule 5.1.2 expands on this point and prohibits showing children in hazardous situations or behaving dangerously except to promote safety. There aren't a lot of decisions on these rules because by and large advertisers understandably take a risk adverse approach when it comes to depicting children.

In this instance the ASA itself challenged an ad which depicted a baby sleeping whilst lying on its side between the legs of a "Baby Elephant Hug Pillow" and cuddling it on the basis that this is an unsafe position associated with Sudden Unexpected Death in Infancy (SUDI). Leaving a baby to sleep in this manner is contrary to published NHS guidance on SUDI. The advertiser said they had received the image from their supplier and that the image did not suggest that babies should sleep with the pillow, and noted that the ad stated not to leave babies unsupervised with the product. Unconvinced, the ASA upheld the ad for being irresponsible and promoting unsafe practices. This is a particularly clear cut example of ensuring that depictions of product use in advertising is in line with the safe use of the product, and that disclaimers will not be sufficient to counteract a visual image, (Marble Corporation Ltd 17 January 2024).

How to mitigate these risks:

  • Make sure to cast appropriately for your ad
  • Double check your calculations
  • Do not promote illegal activities
  • Undertake diligence on images provided by a supplier
  • 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