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ASA rulings round up 10 April 2024

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

The product being advertised must be available to buy

One of the simplest claims that can be made in an ad is that the product is available to sell. Social media posts the ASA considered gave the impression that various flavours of toothpaste were available to buy when they were not, were ruled misleading. The complaint only covered the misleading point and didn't refer to the fact that the ad also incorporated the logos and branding of Sour Patch Kids sweets, Lotus Biscoff spread, Red Bull energy drink, Starbucks Pumpkin Spice coffee and Ben and Jerry's Cookie Dough ice-cream when referring to the "mystery" flavours which weren't available. (Hismile Pty Ltd, 3 April 2024)

Game ads must reflect the playing experience

There are a few rulings from the ASA on ads containing video footage which were not part of the gameplay. On a similar but different point, an ad for "Evony: The King's Return" was investigated by the ASA following a complaint that gameplay depicted in the ad, which being part of actual gameplay was not representative of the actual game as a whole.

The paid-for X (formally Twitter) ad, presented the game as primarily a puzzle solving game whereas the main component is city-building, with player versus player and player versus environment making up other aspects of game-play. Whilst it would be possible for players to play only the 'puzzle' aspects of the game there is no way to progress in the storyline without engaging in all aspects of the game. Furthermore, if players didn't level up in the core gameplay, they were eventually locked out of the puzzles. As this would only be realised upon playing the game, the depiction of the game in the ad was misleading by the ASA because it failed to convey the game's core playing experience. (Top Games Inc, 3 April 2024).

A reminder to ensure influencer advertising complies with the Codes

A celebrity's Instagram reel for The Skinny Food Co (TSFC) advertising low-calorie "delicious meals and snacks" to maintain a "calorie deficit to shift some extra pounds", was investigated by the ASA upheld complaints on three grounds – irresponsible diet promotion, failure to clearly indicate the reel was an ad and making unauthorised health claims.

The reel showcased breakfast, lunch, dinner and snacks, all from TSC amounting to 755 calories for the day whilst offering no information about the risks of following such a diet and the need to seek medical guidance if doing so. The low-calorie diet was presented as a routine approach to weight-management and offered no cautionary information for doing this and the ASA concluded this could encourage the adoption of unhealthy dietary behaviours and therefore was in breach of the CAP Code.

CAP Guidance, including "Influencer's Guide" to ads routinely recommends "ad" or "#ad" is provided before people view a video or reel. In this case the reel included "#ad" but the placement of the tag at the end of the caption required users to expand the text to see the hashtag rendering the information insufficiently prominent in the eyes of the ASA.

Finally the ASA upheld its own challenge regarding the claims that the products featured could contribute to weight loss or maintenance. Claims that a food can reduce weight or maintain weight after weight loss are health claims for the purposes of the CAP Code. Section 15 of the CAP reflects the law in this area and any health claims must be registered as authorised on the Great Britain nutrition and health claims register. The claims in the ad including the claim within the name "Skinny Food" were not authorised and therefore could not be made. (Not Guilty Food Co, 3 April 2024).

Be careful not to exaggerate the claim

Nationwide ads promoting the society's Branch Promise were found to be misleading because the claims in the ad went further than the promise, upholding 282 complaints. The ASA considered that the average consumer would understand claims such as “Unlike the big banks we’re not closing our branches” that Nationwide had not, and would not, close any of its branches long term. The first iteration of the Branch Promise in 2019 had been that Nationwide would not leave a town or city where there wasn’t another Nationwide branch in place and in 2023 this was updated to a promise that no branches would be closed until 2026.

The ASA considered that factors relating to previous, recent branch closures and the effect on future branches in the long term were likely to be significant to consumers when making decisions about whether to choose Nationwide, in the context of the claims made in the ads that Nationwide were not closing their branches. Although Nationwide had closed fewer branches than other financial institutions across a 10 year period, they had closed 152 branches, with 20 branches closed between July 2022 and the end of 2023. There was some information about the Branch Promise in the ads but the ASA explicitly stated that the 2026 date was significant information needed to counteract the impression of the claim being long term. (Nationwide Building Society, 3 April 2024).

Substantiation is necessary for all claims

Various rulings this fortnight highlight the need to hold substantiation for claims and describe products accurately:

  • An ad for mobile phone case covers which depicted people throwing their phones in the air and landing without damage was ruled misleading because the advertiser was unable to substantiate the efficacy of the cases. Test data provided did not assess internal damage of the phones, and was tested against a drop from a lower height and in one instance only assessed the damage to the case when dropped without a phone in it. The advertiser said that the ad itself demonstrated a genuine record of 50 simultaneous drop tests, but the ASA ruled that given that 47 of the participants we Mous employees, friends and family, with the remaining three being paid actors, test was not conducted independently. It did not consider that the footage shown in the ad represented an objective study of any damage incurred (Mous Products Ltd, 3 April 2024).
  • Claims that a heated drying pod would prevent condensation from forming were not adequately substantiated by customer testimonials or articles highlighting the benefits of drying pods in terms of functionality of drying pods compared to other heated airers. The in-house testing indicate a decrease of humidity but the ASA noted that as the product heated the room, the air temperature increased, causing the relative humidity of the room to decrease but that this did not mean that air moisture was reduced. Rather the air was now warmer and able to hold more moisture before reaching saturation. Therefore it didn't consider the results sufficiently evidenced that the product prevented condensation. Other issues with the testing included the laundry loads used being smaller than the loads featured in the ad and the test conditions not being representative of a typical household room. (John Mills Ltd, 3 April 2024).
  • Ads for synthetic diamonds which made the claims “diamonds”, “diamonds made entirely from the sky”, “Skydiamond” and "real diamond" were ruled misleading for not making it clear that the diamonds were laboratory made following a complaint from The Natural Diamond Council. Interestingly the ASA considered the National Association of Jewellers’ “Diamond Terminology Guideline”, which had the status of ‘Assured Advice’ from Trading Standards, and stated that when referring to synthetic diamonds, a qualification such as “synthetic”, “laboratory-grown” or “laboratory-created” should be used. Although the ASA noted it didn't consider itself bound by the advice, it clearly took it into account. (The Sky Mining Company Ltd, 10 April 2024)

How to mitigate these risks

  • Don't imply that products exist when they do not
  • When engaging influencers ensure that they are well briefed on acceptable claims and labelling
  • Consider the consumers interpretation of the claim
  • Make sure the evidence matches the claim
  • Remember people viewing an ad won't know the product as well as you do so consider if information is missing
  • 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