Make the commercial intent clear
A perennial theme of ASA rulings is that advertising must be obviously identifiable as such. In some cases it may not be as straightforward as someone explicitly being paid to promote a product, or having a commercial relationship with a business. In fact anyone promoting affiliate links where they will financially benefit from people clicking through, making purchases or downloading an app must ensure it's clear they are benefitting financially. The ASA upheld complaints against ads on three individual's Instagram stories for not making the commercial relationship with the app featured clear, (WeShop Holdings Ltd 19 July 2023).
Don't advertise unlicensed medicines as cosmetic procedures
Sometimes the point raised by a complainant may not be the key issue in an ad. In this instance a complaint in relation to misleading before and after photographs for a fat dissolving injection caused the ASA to flag the bigger issue that medicinal claims (i.e. "fat dissolving") cannot be made by for an unlicensed product. In this instance the ASA sought information from the statutory regulator and the MHRA confirmed that it was an unlicensed medicine and could not be imported into the UK for a non-medicinal purpose. Whether or not the before/after image is misleading is moot at this point, but for completeness, the ASA upheld on that point too, (Lipstick Gangster Ltd 12 July 2023).
Remember T&Cs protect you too
When it comes to non-broadcast ads, promotors obligations under the Code are wide reaching. Promoters are responsible for all stages of the promotion and must avoid causing unnecessary disappointment. This means particular care has to be taken when making the decision to suspend or cancel a promotion and ensuring that terms and conditions reflect all the relevant restrictions is an important shield for advertisers. In this case, the ASA upheld complaints that a promotion was suspended unfairly because, whilst the advertiser had intended for one leaflet to be distributed per household, neither the ad nor the promotional terms and conditions detailed that the offer was limited to one per household and there wasn't any other limitation on the number of pizzas that could be claimed, (Red Miracle Group 19 July 2023).
Don't encourage irresponsible gambling
Gambling falls into the category of products which need to be advertised sensitively in order not to encourage harmful behaviours. This includes not promoting socially irresponsible gambling behaviour or behaviour which could lead to financial, social or emotional harm. Marketing tactics which may work well in some sectors are not appropriate for others, or need to be handled carefully. So, whilst having a bingo website tab flash to remind a consumer they had not closed their tab or logged out of their account might be possible – having the words "Hey come back!" flashing whilst the consumer visited other sites was found to breach the Ad Code because it could have the effect of encouraging some people to continue gambling when they would otherwise have stopped, especially as the message did not disappear until the webpage was returned to, (Jumpman Gaming Ltd 12 July 2023).
How to mitigate these risks
- Make clear to collaborators that the commercial intention must be clear
- Undertake due diligence into the classification of a product, including whether it's legal to sell
- Plan for a successful promotion and include significant terms in ads
- Remember that one size does not fit all when advertising regulated products such as gambling
- Call your friendly neighbourhood advertising and consumer products lawyer to get help with all of the above
