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ASA rulings round up 19 June 2024

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

Clearly tell your audience if your video is an advertisement

Following on from ruling against TALA ads which were not recognisable as such, the ASA challenged a "Sidemen" YouTube channel video. It featured an advertisement for their premium XIX Vodka brand, mid-video, the Sidemen urged audiences to buy their 1.5L "MAGGY" of vodka, which was ruled in breach of the requirement. Featuring "SIDEMEN" and "XIX" in the title cards, was ruled insufficient to make the commercial relationship between the two entities clear and was therefore likely to mislead consumers to believe these were genuinely held positive consumer opinions rather than marketing. Audiences need to be fully aware of when they are watching an advertisement and when they are watching editorial content; in this instance, the Sidemen failed to make this apparent. Clear delineation between editorial content and advertisements is key and the where it's not clear from the context labelling is necessary. Without the label the content wasn't obviously identifiable as an ad. (XIX Vodka Ltd 12 June 2024). 

Ensure alcohol ads aren't particularly appealing to under 18s

The ASA added its challenge to complaints from the public that the XIX Vodka ad was directed at under-18s and its content was likely to have particular appeal to under 18s, which would be a breach of the alcohol rules. However, these complaints were successfully defended, because XIX Vodka was able to sufficiently evidence that 93% of their subscribed demographic is over-18 (and 94% were over 18 for the specific video). The video was marked as "not made for kids", which ensured that it would not be recommended by the YouTube algorithm to those registered as under-18. The fact that some of the video included fancy dress and one of the members of Sidemen was wearing a Harry Potter t-shirt did not make the ad of particular appeal to children given the overall one and presentation of the content. The ASA did not uphold complaint on these issues (XIX Vodka Ltd 12 June 2024). 

Target your ads appropriately

A dating app advertiser placed a sexually suggestive ad within close proximity to two schools. Ads should not cause cause serious or widespread offence and some content will be inappropriate for outdoor posters. In some circumstances posters should not be placed within 100 meters of a school. Whilst the dating app advertiser did not consider their sexual references to be explicit, the ASA ruled that suggestive cartoonish images and the use of double entendres were too overtly sexual to be displayed in public and so the ad breached rules 1.3 (Responsible advertising) and 4.1 (Harm and offence). The ASA also considered that older children would be likely to understand some of the references.

It is important that ad placement and the breadth of the potential audience is taken into account when advertising through untargeted public posters. Marketers should consider the use of targeted mediums which will not be seen by children when using sexual innuendo to advertise products or services (Online Classified AG t/a PURE 12 June 2024).

Don't include recommendations from individual health professionals in ads for food supplements

Nutritional Sciences t/a Physical Nutrition, intimated that their Activ8 food supplement could prevent inflammation and bone decay and cure "YEARS" worth of degenerative joint conditions. This was a breach of CAP Code because suggesting food can treat or cure human disease is not admissible in advertising. Only licensed medicines can make claims to treat or cure disease. Health claims remain highly regulated and require authorisation from the relevant authority and as such can only be made if they are on the Great Britain Register of nutrition and health claims. In this case, further suggestions that Activ8 supports general physiological functions, such as healthy cartilage and greater flexibility, were deemed to be specific health claims.

A further issue was found in the claim that Dr Paul O'Connell was "the NHS's leading joint expert" which Nutritional Sciences failed to substantiate or even prove his qualification as a medical doctor through his presence on the GMC medical register. Moreover, even if this had been evidenced by Physical Nutrition, the use of 'medical or health expert recommendations' for food supplements is unacceptable and in direct breach of prohibition on individual health professionals making health claims in ads. (Nutritional Sciences Ltd 19th June 2024).

Testimonials must be genuine which includes the person having used the product

BetterMe was ruled to have made misleading, exaggerated and unsubstantiated claims by featuring a paid actor who insinuated they gained their impressive muscle tone exclusively through Better Me's "28-day Callisthenic Challenge". The claim "I look like this and didn't even go to the gym" was considered a misleading exaggeration, because the advertiser had provided no evidence to show that the actor's physique could not be achieved with the program alone. It was noted by the ASA that there was no evidence to suggest the actor had undertaken the 28 day challenge at all.

The advert included an "actor portrayal" disclosure which was displayed on screen for a limited time. The advertiser said they would increase the prominence of the disclaimer, however, statements like this which contradict claims will not be considered to effectively counteract a misleading claim. The CAP Code specifically states that qualifications may clarify but not contradict a claim. When using paid actors in fitness advertisements, is not a problem in and of itself but claiming the individual's physique is a result of a program they didn't participate in and that others can achieve the same physique in 28 days will be. (BetterMe Ltd 19 June 2024).

If you are going to make a comparative joke, make sure it's factually accurate

Although Fussy's adverts were for a non-existed refillable deodorant product called "Mynx", the ASA considered it a direct comparison to an identifiable competitor, Lynx, in light of a complaint which was unsurprisingly raised by Unilever. The adverts featured text stating that "£733 million is wasted on unwanted gifts each year" and implied that Lynx was the "most unwanted" Christmas gift pack. Fussy could not substantiate either of these claims and fell below the requirements for evidence. It did not meet the conditions for making comparative claims against identifiable competitors. The fact the ad was tongue in cheek, and the product advertised did not exist didn't stop it from being ruled misleading. The ad also breached the Code on the basis of denigrating competitors because the ASA ruled it discredited and denigrated the Lynx brand. (Fussy Ltd 19 June 2024).

How to mitigate these risks

  • Ensure ads are obviously identifiable and seek advice on labelling
  • Tailor the ad for the medium it will be displayed in
  • Review the GB NHC Register before making health claims
  • Substantiate claims that an individual has used the product/service
  • Don't rely on the approach being a jokoe as a defence
  • 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