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ASA rulings round up 3 January 2024

04 January 2024

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

Ensure a significant proportion of fares are available at the "from price"

Eurostar advertised fares from London to Brussels, Lille and Paris "from £39" each way in August and September. A potential customer on finding only one fare at the advertised price complained that it was misleading.

The consistent position from the ASA that significant proportion of fares must be available at the "from" across the booking period. It used to apply a rule of thumb that 10% of fares need to be available, but this is no longer the case. In this instance the advertiser had 39,000 seat available at the "from" price across all three routes, which was a very small percentage of the overall fares. Although the T&Cs stated the total number of seats available, this wasn't enough to remove the obligation to have a reasonable proportion of seats at the "from" price. (Eurostar International Ltd 3 January 2024)

Avoid linking gambling to Halloween unless age verification is watertight

A social media post which featured "animated footage of a large full moon above a scene which featured grinning pumpkin heads, a lit church with towers whose roofs resembled pointed, witches’ hats, bats flying around, a spider in a web and a graveyard with a tombstone and a cross" was considered to appeal strongly to under 18s and therefore, being an ad for bingo, breached the Code. The advertiser had featured it on a page that was restricted to over 18s but acknowledged the concern and had removed the ad on receiving the ASA compliant notification. Unfortunately, it looks like the ASA might have needed a precedent, because this still ended up with a published ruling. The point which it shines a light on is that the content might have been alright if it was absolutely possible to show that only over 18s would see it, which might be possible with marketing lists which had been validated by payment data or credit checking but couldn't be relied on in social media where age was self-verified – which is an interesting nuance. (Buzz Group Ltd, 4 January 2024)

Check who you're entering a commercial relationship with – do they know the rules?

The ASA ruled against videos featuring Mille Bracewell at the Erdem clinic in the Republic of Türkiye for not being identifiable as marketing communications, trivialising cosmetic surgery and directing ads at under 18s. Sparked by one complaint regarding one TikTok video the ASA picked up another four videos and added its own concerns the ads trivialised the decision to undergo plastic surgery and were targeted at under 18s.

The videos showed Bracewell at various stages before and after breast augmentation surgery and claims that it was "an amazing experience" and would "definitely recommend to anyone wanting surgery", "the quality of care is phenomenal!". Unfortunately this didn't extend to dealing with ASA as Erdem didn't respond to the ASA at all, leaving it all to Bracewell, who argued these were organic posts about her journey. TikTok pointed out that it prohibited advertising plastic surgery on the platform and for non-commercial content there is an "Audience Controls" toggle which causes organic posts to be targeted at over 18s only which hadn't been utilised.

The ASA noted that the footage included shots within the operating room and Erdem staff were involved in other sections, so the content indicated there might be some relationship but wasn't clear what. The existence of a personalised discount code, meant the ASA didn't accept the argument that it was "a normal customer relationship" and ruled that there was an affiliation which meant the videos would need to be labelled as advertising.

The ASA also ruled that the oversimplified description of the process, light-hearted tone of the ads, upbeat music and cheerful visual all undermined the seriousness of making a decision about plastic surgery. (Erdem Clinic 3 January 2024).

Target ads appropriately

In contrast to last August's ruling which rejected 30 complaints against a poster ad for an OnlyFan's account, this week saw 12 complaints against a different advertiser's account being upheld. This time the ASA deemed that the imagery's "styling, pose and expression would be seen as sexualised and provocative" as opposed to "mildly sexual". The ASA didn't specifically respond to the complainants' (which include the London Borough of Haringey) concerns that the ad shouldn't be shown near a youth centre, milkshake and roller-skating rink but ruled because it was overtly sexual it wasn't appropriate to be shown in an untargeted medium. This meant that even though the advertiser had applied a targeting restriction in selecting a site that was not within 100 metres of any schools, the ad was upheld. (Em Rose 3 January 2024)

How to mitigate these risks:

  • Interrogate the actual number of fares available before making "from" price claims
  • Consider whether a holiday has particular appeal to children
  • Undertake due diligence on potential commercial partners
  • Target ads appropriately
  • 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