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ASA rulings round up 8 May 2024

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

Websites are not constrained by space or functionality requirements

A betting website advertised a "Bet £10 and get £30 free bet" promotion with a "new players only" restriction. However, it did not explain that the restriction applied to new players across all the websites in the advertier's network and not just those who were new to Jeffbet. In circusmtances where ads are limited by time and space the CAP Code will allow for significant terms and conditions (which include restrictions on entry) to be one click away. At the best of times the ASA takes a very practical approach to what sufficient space is (in that it will consider whether there was space for the information regardless of other factors such as the design of the ad) but in this instance the advertiser's argument that its website was limited by space was only ever going to go one way. The ASA upheld the compliant and found the ad to be misleading for omitting material information. (ProgressPlay Ltd, 8 May 2024)

Ads for nicotine containing e-cigarettes are heavily restricted

The Independent British Vape Trade Association's (IBVTA) press ad which sought to "educate smokers about the benefits of vaping" was banned by the ASA for indirectly promoting unlicensed e-cigarettes containing nicotine. Whilst the ad did not reference any specific vape brands or products, and therefore did not directly promote unlicensed e-cigarettes, it did encourage the use of "vaping devices" and "vaping" generally to help "smokers [to] quit". This amounted to indirectly promoting the use of e-cigarettes in contravention with the CAP Code and the Tobacco and Related Products Regulation. In addition, the ad was found to have the effect of encouraging the purchase of vaping products, stating "always buy from reputable retailers" followed by a link to the "find a vape shop" feature on the IBVTA website. The IBVTA's agency had sought a view from the CAP Copy Advice team before the ad's publication. However, CAP Copy Advice can only advise on the CAP Code and not the law, so they flagged that legal advice should be sought on whether the ad could be published in as an advertorial in a newspaper. Unfortunately the agency didn't act on the prompt to take legal advice. (Independent British Vape Trade Association t/a IBVTA, 01 May 2024).

Advertised medical claims require qualified medical supervision and substantiation

A company's offer to "end anxiety for thousands… in less than 14 days" using an "…unorthodox new method" breached the CAP code for being misleading and actively discouraging essential treatment. The advertiser failed to respond to the ASA, meaning no evidence was provided to substantiate the company's claims "cognitive deletion" could cure anxiety, panic attacks and phobias. There was nothing to indicate that a suitably qualified medical professional was overseeing the programme. The lack of medical supervision meant the treatment claims in the ad for OCD and PTSD amounted to actively discouraging essential treatment and consequently breached the Code. (Lark Holdings Limited, 01 May 2024).

In circumstances such as this where advertisers fail to respond to the ASA, they are referred to the CAP Compliance Team who will take the matter forward to ensure compliance. The ASA's primary sanction is bad publicity, but it's the CAP Compliance Team that will oversee the process after a ruling and potentially apply sanctions, which include having paid-search ads removed from search engines, working with social media companies get content removed and referrals to trading standards.   

Documentation intending to be substantiation must relate to the claim

There's always a lot to be gleaned when the ASA is presented with a collection of documents to assess. A ruling against claims made that eyeglase lenses could protect against blue light from screens serves as a reminder that in order to be able to make a claim that a product can alleviate a problem, there has to be evidence of it's efficacy, but also evidence that there is a problem to resolve. The advertiser provided a number of documents but on inspection the studies did not show that blue light causes harm or that its lenses could protect against harm. This is understandable given the submission included studies some of which were intended as preliminary studies to establish models for future research. Patents were also provided but the existtance of a patent isn't in and of itself evidence of efficacy. The experiments outlined in the patents studied the effect of in vitro cell cultures, included light sources that did not correlate with digital screen light sources, timeframes for light exposure which weren't linked to actual use and had not been independently verified. (Sustainable and Responsible Technology SL, 8 May 2024)

How to mitigate these risks

  • Include significant terms in the initial ad
  • Hold evidence for claims made
  • Audit evidence held for claims made
  • Get legal advice for legal queries
  • 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