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ASA rulings round up 5 June 2024

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

Sometimes causing an emotional response will be accepted by the ASA - if handled with care

235 complaints were made to the ASA in relation to a series of ads from the Alzheimer’s Society which described dementia as a series of deaths as the disease progressed and showed how an family member became less and less themselves. Those complaining considered that the ads were excessively distressing, offensive and irresponsible.

The Alzheimer's Society response is detailed and nuanced, as would be expected from an organisation which is an authority on the illness. It noted it was conscious from the outset that a campaign about the realities of dementia would be sensitive and potentially challenging for some audiences. However, the aim of the campaign was specifically to show the reality of the disease and to normalise that difficult reality, and make more people realise that anticipatory grief, and the personal tragedies it surrounded, was no reason to feel ashamed, in order to encouraging more people affected by dementia to seek the support that is available from the Alzheimer's Society. The ad was not designed as a means to solicit donations but illustrate what support was offered and the ad specifically celebrated the individual and showed a person actively loved and supported to the very end by their friends and family. The ASA was cognisant of the fact the ads were emotive and could cause distress but considered that they presented an accurate and sensitively delivered portrayal of the reality of the disease. It ruled that any distress caused was justified by the ad's messages of the support available to those with dementia and those caring for people with dementia at all stages. (Alzheimer’s Society, 5 June 2024)

On pack promotions need key terms and conditions included

As noted in the last round up, the ASA doesn't cover product labels unless they are included as a pack-shot within an ad or feature a sales promotion. Significant terms and conditions need to be stated in the ad, and consumers must have access to the full T&Cs before they enter. It's standard practice to have significant T&Cs in the ad or on the packaging with a signpost to where the full T&Cs are available. Consumers may not go and look at the full T&Cs before they enter, but the point is they can if they want to. The requirement for significant T&Cs on packaging is key because that is the information the consumer has in the store before they buy the product. The Code lists what is likely to be considered significant information, and although the ASA cannot mandate required key terms, from a practical perspective the closing date is almost always going to be necessary. An on-pack promotion which simply invited the consumer to scan to win £100 and "*T&Cs Apply" breached the Code and then had T&Cs including a closing date of 31 January 2024 on Instagram was ruled to breach the Code after a complaint from a consumer that had purchased the product on 9 February submitted an entry on 25 February.  The advertiser didn't respond to the ASA so were referred to CAP Compliance. (Future Farm Plant-Based Food UK Ltd, 29 May 2024)

All claims need evidence

Whether it's a stated claim about the product or a visual which purports to show how a product works evidence needs to be held substantiating the claim. An ad for dash cams was investigated by the ASA after a complaint that it misleadingly exaggerated the ability of the products to capture detail in low light conditions. The headline claim “Enhanced Night Vision”, was accompanied by the claims "capture and process superior image quality” and provide “a clear view of your surroundings, even at night" along with crisp and high resolution image of several cars travelling on a wet motorway at night time, with two cars displaying clear and readable number plates. The ASA considered consumers would understand the image to be a screengrab taken directly from real footage sourced from one of the three products referenced in the ad. The fact that the image was in fact a stock photo to which the advertiser had edited to include more visible number plates was ruled misleading. Evidence wasn't provided to show "Enhanced Night Vision". The ASA framed this as being a misleading representation and an exaggeration of the performance of the products, but doctoring an image to imply a claim could also be an example of a misleading action. (Portable Multimedia Ltd, 5 June 2024)

Advertising nicotine containing e-cigarettes is restricted

An email promoting nicotine containing e-cigarettes breached the CAP Code because using emails to make promotional claims about these products is prohibited. As the ruling points out, the Code reflects the law. Specifically the Tobacco and Related Products Regulations 2016 (TRPR) on the advertising of unlicensed, nicotine-containing e-cigarettes and their components in certain media, including online and some other forms of electronic media. The email included references to nicotine containing products and "vape kits" which could be used for nicotine as well as non-nicotine containing products. (iVape London Ltd, 5 June 2024).

How to mitigate these risks

  • Only use emotive themes when they are justifiable
  • Don't advertise nicotine containing vapes in electronic media
  • Hold evidence for all claims
  • Include significant terms and conditions on packaging
  • 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