Non-technical elements of financial promotions must not mislead
The Financial Conduct Authority (FCA) and the Advertising Standards Authority (ASA) have a Memorandum of Understanding in place, which deals with the arrangements for cooperating when it comes to the regulations of financial promotions. In a nutshell, the FCA is the statutory regulator for financial promotions but the ASA will investigate broadcast ads seeking input from the FCA when necessary. In non-broadcast advertising the ASA does not cover the regulated aspects of a financial promotion, but will investigate complaints in relation to "non-technical" aspects.
Non-technical aspects are matters of serious or widespread offence, social responsibility and the truthfulness of claims that do not relate to specific characteristics of the financial product itself. This would include a claim by a company that is regulated by the FCA when it is not, as was the case in an ASA ruling against a foreign currency payments service this week. The advertiser did not explicitly state that it was FCA regulated, however the information about the third party entity, which was regulated, was set out in a way which the ASA considered implied that the advertiser carried out the payment services and were financially regulated. In addition to finding this misleading, the ASA ruled against a comparative claim that sending money was more expensive when using competitor services, which was based on data from October 2022 but was being featured on the website in March 2024. Whilst the ASA accepted that exchange rates are dynamic and subject to continuous change, this meant using exchange rate data taken more than 12 months prior to when the ad was seen could not give a reliable or accurate representation of the rates consumers could expect to receive. The ASA also noted that the advertiser was unable to provide evidence that any monitoring of competitor exchange rates was being undertaken. Although the date for the data point was stated in the ad, the lack of monitoring and the time lapse meant that the complaint was upheld. (CurrencyWave Ltd, 6 November 2024)
Booking periods are likely to be considered material information
Social media ads promoted Eurostar tickets from London to Amsterdam and Brussels from £39 each way with the price asterisked to "T&Cs apply". A consumer complained to the ASA after they had only found limited tickets at the advertised prices. The ASA considered that without further information, consumers would expect to find the tickets available at the “from” price across a range of dates and times within that period, and that they would have a reasonable chance of obtaining a seat at the advertised price. Eurostar provided information regarding the number of £39 tickets which had been sold, but not in relation to the availability of the £39 tickets or the number of full priced tickets during the booking period. Whilst the landing page stated the dates the fares were available, the ads did not include any qualifying information. Additionally, the information on the landing page was only visible if the consumer scrolled down. Information regarding the dates the fares were available was considered material information and its omission was ruled misleading. (Eurostar International Ltd, 6 November 2024)
Judging criteria are likely to be considered material information
Staying with the concept of omitting material information in a promotion but moving from trains to DIY and trade supplies, the ASA upheld complaints against a Wickes prize competition which had not included the judging criteria in ads for the promotion. Entrants were required to take a picture of their outdoor entertaining space and upload the picture with a hashtag, but it was not explained that judges would use a scoring matrix based on five key questions the judges had to consider, nor that shortlisted entries had to provide a 200-word explanation on the motivation behind the design of their outdoor space. Steps necessary to participate in a promotion are significant terms and conditions which should be in the initial ad, and limits on word counts in social media are a thing of the past so the advertiser was not able to argue they were limited by space. The ASA considered the existence of that second stage of the competition was a significant condition relating to how to participate, and therefore, that this requirement should have been made immediately clear to potential entrants in the ad, rather than only in the terms and conditions. (Wickes Building Supplies Ltd, 30 October 2024)
Watch out for implied endorsement of irresponsible behaviour
18 complaints were made against TV and VOD ads for Boots skincare because the ad seemed to endorse the idea of not using sunscreen and instead dealing with the damage to skin with the advertised product. The ad's narrative was based on the consumer insight that ten years ago people did not wear sunscreen regularly in the way they are urged to do so now. Whilst the ASA noted the advertiser's argument that the examples of not using sunscreen were historic, and therefore not a reflection of the women’s current attitude, and that all scenes were of times when the sun was either low or obscured, it was concerned that the attitude to sunscreen use was flippant. The women in the ads made statements such as “too busy having fun” to have always used sunscreen and "let’s not regret our sunny memories” but “do something about it” using the product, which was stated to be “clinically proven to reverse visible signs of sun damage”. Further text stated "don't regret just reverse". The ASA considered that the impression given by the ad was that not using sunscreen could be taken lightly and therefore the ASA ruled that the ads condoned exposure to the sun without sunscreen, which subsequently were irresponsible and harmful. (The Boots Company, 30 October 2024)
It always pays to hold the evidence
Following video evidence from an advertiser, the ASA ruled that the depiction of the Flash duster product in a TV commercial was accurate and therefore did not uphold a complaint that the product did not move as shown in the ad. The video evidence showed the product performing the same tasks as in the advertisement, which supported the advertiser's position that the product could remove dust, without the need to move objects. (Procter & Gamble UK, 6 November 2024)
How to mitigate these risks
- Ensure your claims aren't ambiguous about who holds what authorisation
- If prices cannot be kept up to date in real time, ensure this is made clear
- Hold contemporaneous evidence in relation to availability
- Ensure significant terms and conditions are stated in the ad, including how to enter
- Look at the overall impression given by the ad
- Always hold the evidence
- Do call your friendly neighbourhood advertising and consumer products lawyer to get help with the above
