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ASA rulings round up 28 February 2024

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

Advertise and reference alcohol responsibly 

The CAP Code has detailed provisions on how to advertise alcohol responsibly, including not encouraging unwise drinking styles, implying alcohol should take priority or that it can overcome boredom.

Restrictions that relate to alcohol don't just apply to advertising for alcohol products but to anytime alcohol features in advertising. A TV ad for an online sofa company showed a couple sitting on their new sofa whilst one commented “Going to a fancy showroom would be very nice. But I think that buying this new sofa from dusk.com and having money left in the bank for parenting essentials is nicer” and pouring out a glass of wine. A viewer complained that the ad implied alcohol could be used to cope with parenthood and was therefore irresponsible. The ASA thought some might find the reference to alcohol as distasteful, it didn't go as far as suggesting wine is "an indispensable crutch for parents, or […] in any way therapeutic," (DUSK (Retail) Ltd, 28 February 2024).

It's possible to imagine that if the parents had been depicted as stressed, drinking to excess or inebriated, the outcome could have been different. No such nuance in an ad for a racing simulator gaming package which included alcohol with the line "Drink driver package" and was found to breach the alcohol rules for making a clear link with alcohol and driving, (Strafe Esports Ltd, 28 February 2024).

In contrast a Jack Daniel's poster ad showing a group of friends drink Jack Daniel's with the line "Shorter days mean we can skip to the good part" was ruled to breach the alcohol rules because the inference was that because the nights were drawing in it was acceptable to start drinking earlier in the day. The ASA considered the overall impression of the ad was that drinking alcohol was the best part of the day, would alleviate boredom and should be given higher priority, (Brown-Forman Beverages Europe Ltd, 28 February 2024).

ASA still zeroing in on zero emissions

Following on from rulings earlier this month against "zero emissions cars" the ASA investigated an ad which claimed "zero emissions driving". The advertiser made the reasonable point that the ad specifically stated “driving” and therefore was not a statement that the model was a zero-emissions vehicle in absolute terms, and the ASA was happy that the claim was not made in relation to the vehicle's overall life-cycle. The fact that "zero emissions driving" was made in the context of other specific features of the car (charging speed and driver assistance) was also a factor in the ASA not upholding its own challenge, (Ford Motor Company Ltd, 21 February 2024).

Only reference medical conditions in advertising with the appropriate registrations

Product presentation can play a role in product classification and it's possible for software (and therefore apps) to be medical devices. The ASA challenged and then ruled against two ads for apps purporting to assist with the management of ADHD. Whilst advertising a puzzle game and referencing focus or concentration might not be problem in and of itself, making implied claims in relation to ADHD or indeed explicit claims such as "Manage your ADHD" are likely to imply the product is a medical device. Inviting people to self-diagnose ADHD via a website or app when there was no suitably qualified medical professional involved also breached the Ad Code. Medical devices require registration with the Medicines and Healthcare products Regulatory Agency (MHRA) and are subject to a vigorous regulatory regime. The ads were found in on the basis they discouraged essential medical treatment and made non-compliant medical claims, (Happyo, GMRD Apps Ltd 21 February 2024).

Be prepared with substantiation and a rational for claims

There are various risk factors to consider when developing claims, and one of them is likelihood of complaint. Complaints from consumers or competitors are a standard consideration but some sectors or categories also have motivated interest groups, as shown by The Campaign For Real Bread's complaints against various Hovis ads which featured “rustic”, “authentic”, “traditional” and “artisanal-inspired bread” claims. The complainant considered these misleading on the basis the bread was produced using automated industrial techniques. It's a key point to note that the words were not made in isolation as absolute claims. The advertiser ensured their defence put the claims back into context, for example "This rustic seeded bloomer has been created by our expert bakers using a traditional starter dough for more flavour […]".

On assessing bread making processes and noting that the Chorleywood high speed mixing process was not used for these products, the ASA started from the perspective that UK consumers would be familiar enough with the Hovis brand to know its products are produced on an industrial scale. It also looked at the specific use of each of the claims, for example the claim “traditional” was only in reference to the starter dough, and not a wider claim that the breads had been made using only traditional processes or ingredients and therefore wasn't misleading.

The ASA also ruled that the claim "no artificial preservatives" was acceptable. Whilst the ad stated the product included “Emulsifier: E472e, Flour Treatment Agent: Ascorbic Acid” but although these are additives, they are not classified as "preservatives" in law and therefore the claim was not misleading, (Hovis Ltd, 28 February 2024).

Ads for loans shouldn't encourage unnecessary spending

Two rulings from the ASA's Christmas loans project have been published. In both cases the ASA challenged whether the ads irresponsibly encouraged consumers to spend more than they could afford by taking out a loan to fund Christmas spending.

Although from different credit union companies, the approach was similar with references to "hassle-free Christmas", "take the stress out of Christmas", "Cherish every moment of the holidays, without fretting over your budget" and "Save the Christmas Stress", "Celebrate the festive season with joy and financial ease!", "Our Christmas Loan is here to spread the holiday cheer" respectively. The presentation of the loans made light of the decision to take out a loan and encouraged consumers to use a loan to overspend at Christmas. It seems reasonable to expect that further rulings on this topic are likely, (Pennine Community Credit Union, Capital Credit Union Ltd 28 February 2024).

How to mitigate these risks

  • Remember non-alcohol products featuring alcohol are caught by the ad rules
  • Never link driving and alcohol
  • Put zero emission claims in context
  • Undertake due diligence as to regulatory requirements for advertising products
  • Ensure manufacturing claims are specific
  • Consider the overall impact of an ad to ensure a responsible lending message
  • 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