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ASA rulings round up 13 March 2024

18 March 2024

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

Strong appeal to under 18's assessment goes further than sporting career

In another ruling as part of the ASA's wider project looking into and taking action against ads which feature people and personalities that are likely to be a strong appeal to under 18's, the ASA upheld a complaint against a BetUK radio ad which featured Adebayo Akinfenwa. The advertiser provided an analysis of why they didn't consider that the retired footballer would be popular with under 18's, including the fact that he never played for a Premier League club his general media profile did not indicate he would be of appeal to children and that his followers on Instagram and Snapchat that were under 18 were 8% and 13% respectively. However, the ASA considered that 157,000 under-18 followers was a significant number in absolute terms, it also took into account his ranking within the FIFA with his videogame nickname 'The Beast' and a documentary all of which meant that the ASA considered Akinfenwa to be "unusually well-known for a former lower league footballer", (LeoVegas Gaming plc 13 March 2024).

Substantiation requirements for price claims remain robust

A competitor complaint to the ASA challenged a mattress companies 40% off saving claim, as well as various "was/now" pricing claims where a reference price was stated, crossed out and then a lower price was emphasised. Price statements must not mislead by omission, undue emphasis or distortion.

A key element is that the reference price must be genuine, which means providing evidence to satisfy the ASA that a there were significant sales at the higher selling price outside of the times products were sold at a promotional price. The ASA will look at the time period that the products were available for the higher price and the number of units sold. The advertiser provided unit sales for the various products, which showed that the products were sold for the same amount of time as the reference price, or were at the promotional price for longer than the reference price. Also, the number of products sold at the reference price was not sufficient to indicate the higher price was the usual selling price (e.g. the unit sales data shared to substantiate the £2,409 reference price and £1,445.40 promo price showed that 46 units had been sold for £2,409 versus 1,014 units at the lower amount). In the absence of evidence substantiating the savings claims they were ruled misleading.

Advertisers who have been subject to an ASA ruling often start more closely at competitor's claims. So if a competitor has a ruling made against them, it's a good time to do a stock take on one's own claims, (Simba Sleep Ltd 6 March 2024).

Medical claims can only be made for registered products

The requirement that medical devices be registered came in after Brexit and has been in force for a couple of years, adding an extra layer of non-compliance when it comes to products which are presenting themselves as medical devices when this is not the case. There have been a steady stream of rulings on this point (our last roundup covered unregistered apps referring to ADHD).

This time ASA upheld its own challenge against gloves and socks which were made from bamboo and making claims which specifically referenced medical conditions. These Bamboo Arthritis Gloves and Bamboo Anti–Fatigue Socks not only had claims within the name, but also made claims to "combat foot pains, neuropathy, swelling, diabetic foot and more while sleeping", (OneCompress, 6 March 2024).

Even licensed products cannot guarantee efficacy

Claims for medicines must be in line with the marketing authorisation, as laid out in the Summary of Product Characteristics (SmPC), in addition there are general restrictions which apply to all claims for medicines. Prohibited claims are listed in the Human Medicines Regulations 2012 and include guaranteeing results; comparative efficacy claims; and absolute safety claims. The BCAP Code reflects these restrictions so an ad for a licensed hair loss medicine which made implied claims that results were guaranteed was found to breach the Code. The TV ad in question did not explicitly refer to results being guaranteed but the use of a money back offer ("If your hair doesn’t grow back after 180 days of using Numan we’ll give a full refund”) in combination with “clinically proven” was found to breach the Code. The ruling makes clear that money back offers are not prohibited in themselves, but it shows that all possible interpretations of ad need to be considered, (Vir Health Ltd 6 March 2024).

Marketing communications need to be obviously identifiable as such

An influencer's video on social media was rulled to breach the CAP Code because it didn't make the commercial intent of the video clear. The influencer spoke about her upcoming day whilst applying make-up and referencing the brand which was being used. The influencer's position was that the video had been created organically in response to a user comment. However the make-up brand itself, BPerfect, did not respond to the ASA.

In these circumstances the brand is going to be assumed to be the advertiser for the sake of the ASA ruling unless further information is not provided, and so it's primarily the brand's responsibility to respond to the ASA when challenged about content. Interestingly the influencer had referred to a "collab" with the brand which nodded towards some kind of commercial relationship, but didn't go far enough to make it clear in the eyes of the ASA. This ruling serves as a reminder to influencers to ensure the terms of their collaborations with brands are clear, (BPerfect Ltd 6 March 2024).

How to mitigate these risks

  • Consider the careers and media profiles of sports people holistically when considering their appeal
  • Look at your pricing claims through the eyes of your competitors
  • Make claims appropriate to the product's classification and/or licence held
  • Undertake due diligence on the brands you work with
  • 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