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ASA rulings round up 3 July 2024

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

Indirect promotion of nicotine containing e-cigarettes

Except in very limited circumstances, the promotion of unlicensed e-cigarettes containing nicotine is illegal under the Tobacco and Related Products Regulations 2016. The CAP Code reflects the law and that ads directly promoting these products are in breach of the Code unless in media targeted exclusively to trade. The indirect promotion of nicotine-containing e-cigarettes and their components is also prohibited.

The ASA has been running what is essentially a sector based investigation into the indirect promotion of these products, including through affiliate schemes, and now published a number of rulings against e-cigarette companies for their indirect promotions of nicotine e-cigarettes and their components.

The advertisers each encouraged the use of affiliate links in different ways. For example, "If you have a website (or other online marketing channels) that can help promote Apollo products and send traffic to our website, you can use your website to indirectly generate sales", "Does your village/town have a […] social media page? Are you part of any hobby or special interest groups? Talk about JAC and watch your referrals roll in!" and "affiliates (also known as publishers) promote a company's products through various online channels and earn a commission for each sale or lead they generate."

In each case, the advertisers responded that they considered the activity to be compliant but that would cease to undertake it based on the ASA concerns. One of the advertisers said they had seen other vaping websites utilise affiliate programmes, which meant that they didn't realise it would be a problem. Unlike TV commercials, internet advertising isn't pre-cleared so the fact others are doing it, isn't a reliable basis for a compliance decision. 

The ASA ruled against the ads on the basis they had the indirect effect of promoting nicotine containing e-cigarettes in online media as well as inciting others to break the law. (Apollo Future Technology Ltd, Magflo Ltd, Pixus Online Ltd 26 June 2024)

Food supplements making medicinal claims – Menopause

Staying with sector wide projects, the ASA ruled against various ads for food supplements which made unlicensed medicinal claims and unauthorised health claims in marketing referring the treating symptoms of the menopause.

The CAP Code prohibits claims which state or imply a food can prevent, treat or cure human disease. Referring to the menopause in the context of 'disease' may feel uncomfortable, however, this phrasing stems from the law and the legal definition covers far more than the ordinary meaning of the word. 'Disease' encompasses any injury, ailment or adverse condition of mind or body. This captures the symptoms of menopause; on this basis, any claims to cure 'disease' cannot be made without a medicines licence. Therefore, claims such as "a natural antimicrobial and anti-inflammatory herb that supports weight control, digestion, joint pain & cools hot flashes [sic]" and "Menopause sucks so bad! Not to mention the hot flashes [sic] and joint pain I’ve had for over 7 years. […] the tummy or gut area is so bloated and big…" were found to breach the Code.

One advertiser argued that the purpose of the ad had been to provide information about the ingredients and their potential benefits for general health and wellbeing. However, the ASA considered that consumers would understand "It’s the most comprehensive menopause support supplement that’s out there...", “From helping with mood, to brain fog, to hot flushes, to night sweats, to just all over, feeling so much better, more energy, and better sleep" to mean the product could treat the symptoms of menopause.

The claims "supports your immunity, your bone health, your heart health, and cognitive function” were found to breach the rules on making health claims for foods. "Supports your immunity" was ruled to be an unacceptable adaptation of the authorised health claim and failed to link the effect to a specific nutrient. The references to "bone health" and "heart health" were considered general health claims which ought to have been accompanied by a specific authorised health claim. (Femtech Healthcare Ltd t/a KeyForHer, Rejuvit Labs, LLC 26 June 2024)

Food supplements making medicinal claims - Autism and ADHD

The ASA also ruled against advertisements for food supplements which indicated that products for children with autism or autism spectrum disorder (ASD), which claimed that the products would help with symptoms commonly associated with that condition. Such claims would, for the purposes of the Code, fall within the definition of claims to treat or cure human disease. Examples of the non-compliant claims included "within the first three days he started using way more words" and "helped my 5 year old with Level 2 autism so much. Within the first week his meltdowns decreased by 80%". (Spectrum Awakening, Aspire Nutrition, 3 July 2024)

An ad which made claims such as "for people with stress anxiety brain fog ADHD" was also ruled to breach the Code on the basis that the ASA considered those claims would be interpreted as explicit references the product could help with those conditions, and therefore were claims that it could prevent, treat or cure human disease. The fact that the product name "Happy Mind Drops" was a registered trademark did not supersede the prohibition on claims foods and food supplements stating or implying a food prevented, treated or cured human disease. (The Drop Supplements Ltd, 3 July 2024)

Social Media trends aren't always appropriate for the product

The CAP Code includes robust rules in relation to alcohol advertising which stop ads from encouraging irresponsible drinking, in terms of consumption and the reasons behind drinking. These requirements apply regardless of medium, use of humour or referencing to social media trends.

An ad featuring a cut-away of a person slipping in the mud to spilling an alcohol drink down themselves to promote Las Iguanas' bottomless brunch was found to encourage excessive and irresponsible drinking and featured a person appearing under the age of 25 in breach of the CAP code. The restaurant chain argued the ad was intended to be a humorous recreation of a virial trend on the platform, rather than to encourage or condone excessive drinking. However, they did acknowledge in hindsight the ad could appear that way. The ASA concluded the phrasing "…you can leave bottomless brunch like this" along with the depiction of person falling, whilst spilling an alcohol beverage, suggested it was desirable to leave a bottomless brunch in this way, and therefore encouraged excessive drinking in breach of the CAP code. In addition, the person depicted falling over was in fact under the age of 25, and despite not consuming any drinks, they were the only person featured in an ad promoting alcohol which is a breach of the Code. (The Big Table Group Ltd t/a Las Iguanas, 3 July 2024)

The evidence held needs to match the claims made

Evidence must be held for all claims. Market leading claims are comparisons against all competitors and therefore need to comply with the rules on comparative advertising. An ad for a home beauty device was ruled misleading in the absence of evidence substantiating the claims "The world’s most powerful home beauty device" and that it was "100x" more powerful and effective than LED masks. The advertiser provided evidence relating to the power output of the device, but the ASA considered that the consumers would view the claims to be a measure of the device’s effectiveness instead of its actual power output. (Lyma Life Ltd, 26 June 2024)

German company's water bottle ad encouraged anti-social behaviour

An ad featuring a man passing water in public found to condone anti-social behaviour and therefore breached the Code. The advertiser argued the ad merely represented a human biological function in a humorous and non-offensive way. The ASA noted, however, that the scenario took place in a real-world setting and depicted a male prominently and publicly urinating in a park, which was considered people would view as anti-social behaviour, as well as potentially unlawful in the UK. The context of the ad as a whole was considered to trivialise the behaviour and the ASA also noted, which was not depicted in the ad, the implication that the person was exposing themselves. (air up GmbH, 3 July 2024)

How to mitigate these risks

  • Don't rely on the fact others are doing something to determine whether the activity is compliant
  • Don't make claims that food supplements can treat the symptoms of conditions such as the menopause
  • Do assess whether an approach is appropriate for the product being advertised
  • Do consider cultural sensitivities when attempting humorous approaches
  • Do 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