Mid-contract price increases need to be displayed 'prominently'
There have been a few ASA rulings against telecoms company websites which likely signals that another ASA sector project has been underway. In each instance the ASA ruled that the failure to make clear on the website that data and/or broadband contracts would be subject to mid-contract price increases was misleading. In each case the advertiser had stated the price for the first year of a 24 month contract and then noted elsewhere that there would be a price increase, either by reference to a rate of the inflation or specifically stating the amount of the increase. However, the ASA pointed to the CAP Guidance which took effect in December 2023 which specifically notes that mid-contract price rises are material information which need to be made clear to the consumer.
Whilst the CAP Guidance isn't (and can't be) prescriptive, it does provide an example of compliance based on information indicating that the price will or could rise being given equal prominence to the price claim, with further details placed one step away. The ASA rulings emphasise the point that the information about the increase needed to be clear and prominent. The ASA wasn't satisfied with any of the various ways the different advertisers had laid it out. Overall, whilst the ASA did not take issue with the content of the information provided, it concluded that it was insufficiently prominent and therefore likely to mislead. (TalkTalk Telecom Ltd, Telefonica UK Ltd 9 October 2024)
Images need to match the product
If an ad contains an image of the product, that's what consumers will rightfully expect to receive. Following a complaint that the image of a baby box in an ad was not representative of what was received, the ASA noted that the claims “Your baby box…” and “Free baby box…”, which appeared with the accompanying image of the items and no qualifying text, implied that the items a consumer received in the box would be no different from those presented in the ad. The advertiser did not provide evidence that consumers were provided with information as to the nature of the items in the baby box before it was ordered, and the ASA therefore found the ad to be misleading. (Fanfinders Ltd, 9 October 2024)
Closing down claims can only be made if actually closing down
In further examples of misleading actions, the ASA ruled against four advertisers who each claimed that collections were closing down or products were being discontinued when that was not the case. Three home-wear companies and one hair pin advertiser all claimed a date from which the products would no longer be available and then continued to sell them after that date. In each case the ads were spotted by the ASA's Active Ad Monitoring system as part of a wider project, so we can probably expect to see more rulings on this point. (Ashlen Inc, Goodysee, Kentesh Ltd, Moderny Inc 9 October 2024)
Free means free
The ASA has upheld a ruling against a holiday company for misleadingly offering a "free" fourth week when booking a three week holiday. The ad in question featured various offers for a package holiday to Madeira, including a table which listed one, three and four week stays from November 2024 to February 2025. In all except the December row, the fourth week was shown as being “free”.
When the complainant tried to book a four-week holiday and redeem the offer, they were quoted a cost greater than the advertised price of a three-week holiday to the same destination within the same timeframe. On investigation, the ASA understood that the three-week holidays listed in the ad were subject to a separate 15% “early bird” discount. However, because that discount did not apply to the cost of a four-week holiday, it meant that the overall price of a four-week stay was more than that of a three-week stay.
The ASA considered that consumers would expect that because the fourth week was listed as being “free”, the cost of a four-week holiday would be the same as that for a three-week holiday. As that was not the case, the ASA concluded that the ad was misleading. (Sunspot Tours Ltd, 2 October 2024)
"In partnership" is not in perpetuity
A series of ads for The BLAC Awards, an organisation that promotes achievements in the black community, featured text stating "in partnership with the Royal Air Force" and included the Force's logo. The Royal Air Force (RAF), who asserted The BLAC Awards did not have a current official partnership with the RAF, challenged whether the ads were misleading.
The CAP Code states that marketing communications must not claim that the marketer, the marketing communication or the advertised product has been approved, endorsed or authorised by any public or other body if it has not. The ASA considered that consumers would understand the inclusion of the RAF logo and the "in partnership" claim to mean The BLAC Awards had an official, current partnership with the RAF and was authorised to use its logo.
The BLAC Awards said that they believed they had the authority to use the RAF’s logo since July 2020, when the RAF sponsored a BLAC Awards event. However, the ASA did not see any evidence to suggest that the partnership was ongoing and that, at the time the ads were seen, The BLAC Awards was authorised to include the RAF’s logo in its advertising. The ASA therefore concluded that the use of the RAF logo and "in partnership" claim were misleading. Whilst this ruling relates to claims of a partnership, the principles apply to other types of commercial relationship including sponsorships and endorsements. (The BLAC Awards (UK) C.I.C, 2 October 2024)
How to mitigate these risks:
- Keep up to date with new guidance
- Ensure all claims are accurate
- If images cannot be kept up to date, use a different approach
- Do not describe something as 'free' unless it truly is (having considered all aspects that impact the price(s) advertised)
- Ensure any qualifications and limitations to claims are clear and do not contradict the claim
- Do not claim or imply you have an active partnership, or other commercial relationship, with a third party (including by using the third party's logos) if you currently do not. If in doubt, check your contract with the third party, or confer with the third party directly
- 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.
