• PL
Choose your location?
  • Global Global
  • Australian flag Australia
  • French flag France
  • German flag Germany
  • Irish flag Ireland
  • Italian flag Italy
  • Polish flag Poland
  • Qatar flag Qatar
  • Spanish flag Spain
  • UAE flag UAE
  • UK flag UK

ASA rulings round up 22 November 2023

23 November 2023
The DWF consumer regulatory team take you through the key lessons from the last fortnight.

Environmental concerns are not limited to green claims

The ASA upheld a complaint made against ads for SUVs on the basis that ads were irresponsible because they condoned behaviour that was harmful to the environment. The Ad Codes contains rules against condoning violence or anti-social behaviour, unsafe practices generally, excessive food consumption, damaging oral healthcare practices, poor nutritional habits, socially irresponsible gambling, criminal behaviour, gambling at work, excessive consumption of alcohol, unsafe driving or the use of illegal drugs. There is no code rule that refers to condoning behaviour that is harmful to the environment. So the ASA ruled under rule 1.3 which states 'Marketing communications must be prepared with a sense of responsibility to consumers and to society' which is a significant development.

The ad in question featured various Sports Utility Vehicles in an off road setting. The advertiser pointed out that off-road vehicles ought to be able to be depicted off road and that the formations of vehicle and general style (including use of CGI), including the formation of the cars in the style of wildebeests made it clear the scenario was fantastical.

Notwithstanding this, some of the scenes also showed the vehicles on tracks and roads. The ASA noted that the vehicles 'travelled across untarmacked plains and through rivers, with dust and scree visibly disturbed' and that the fact the cars were sometimes on roads was not clear from the ads. These and other concerns led to the ASA concluding that ads presented and condoned the use of vehicles in a manner that disregarded their impact on nature and the environment, (Toyota (GB) plc 22 November 2023).

Watch out for Brexit divergence

A website and a paid-for Facebook ad claimed that toothpastes containing titanium dioxide ('TiO2', an ingredient used to make toothpaste white) were potentially harmful and carcinogenic. The ASA noted that the evidence provided by ZING either didn't include toothpaste, or did not show a correlation between TiO2 and cancer. The advertiser also provided the European Food Safety Authority (EFSA) opinion which refers to possible genotoxicity of TiO2 and was the basis for the EU prohibiting its use as a food additive. However, the Food Standards Agency (FSA) chose not to follow the EU position on titanium dioxide and it is still acceptable for use as a food additive in England and Wales. (The ruling doesn't mention Food Standards Scotland (FSS), but it also chose not to follow the EU stance). Crucially, titanium dioxide is still permitted for use in cosmetics and medicines in the EU and UK. Therefore the claims were ruled misleading, (ZING Oral Care Ltd 15 November 2023).

Avoid scaring children (or adults) whilst promoting horror films or themed events

A poster for PrimEvil, a horror-themed Halloween event at Norfolk Dinosaur Park, featured an image of a person with severe head wounds and rotting flesh. Several complainants, including parents whose children found the ad distressing, challenged whether it was likely to cause fear and distress, and whether it was appropriate for display in an untargeted medium. Norfolk Dinosaur Park argued that the ad was targeted at a teenage and adult audience and did not feature violence or threats. It was also less graphic than their previous ad which depicted a zombie. However, the ASA found that the image was likely to distress young children and was unsuitable for display where it could be seen by them. The complaints were made in September 2023 and the ruling was published in November, which is an example of the ASA's process for seasonal ads in action, (Norfolk Dinosaur Park Ltd 15 November 2023).

Staying with the evil theme, complaints were made against video on-demand ads for "Evil Dead Rise" for being unduly distressing. The ads contained scenes of blood, violence, and fear including a child in extreme peril. The ASA ruled that targeting the ads at 18 and over wasn't sufficient, and the ads were unsuitable for general viewing and caused unjustifiable fear and distress. The ads had not been limited to after 9pm only, but even if they had that wouldn't be enough, (Studiocanal Ltd 15 November 2023).

Medical procedures should not be trivialised nor insecurities played upon

An ad promoting various procedures and packages was investigated. The first issue was that the ad exploited insecurities by using slogan text such as "increased body confidence" as a benefit of a tummy tuck. The second issue is that the ad trivialised the decision to undergo cosmetic surgery by emphasising the vacation aspect of the trip. Finally, information was omitted regarding the need for a pre-consultation to assess the patient's potential contraindications and suitability for the procedures, including where the pre-consultation would take place.

The ASA upheld their decision on all three issues citing that the ad was generally misleading, played on peoples insecurities in terms of body confidence, and that the information omitted was likely needed to make an informed decision before purchasing a surgery package from the clinic, (WHM Hair Transplant and Aesthetics 15 November 2023). This ruling is in line with a string of rulings covered in our 11 October round up.

Testimonials must be genuine

A firm specialising in financial claims posted two paid-for social media ads that featured actors claiming to have received compensation from Moneybarn (a car financing company) and Vanquis Bank. Vanquis Bank challenged whether the ads were misleading on the basis they implied that the actors were genuine customers who had received specific amounts as compensation when they were not. TMS admitted that the ads did not contain genuine customers and that they were actors. The ASA upheld the complaint. It is possible to use actors to show case representative results, but the ad needs to make it clear, (TMS Legal Ltd 15 November 2023).

Only make authorised health claims for foods

Health claims (i.e. claims that state, suggest or imply a relationship between a food/ingredient, and health) can only be made if they are on the GB Register of Nutrition and Health Claims (which is the same as the EU register as at 31 December 2020). Medicinal claims, such as those to treat a vitamin deficiency cannot be made for foods at all. Claims which relate to appearance can only be made if there is robust evidence to that effect. Hence an advertiser making claims that its collagen supplement supported “stronger nails” and “improved joint health" was found in breach because these are unauthorised health claims, and it wasn't able to substantiate that the product would "help maintain the elasticity and firmness of your skin” and “reduce the appearance of fine lines and wrinkles”. One study being based on self-evaluation of wrinkles by participants in Japan, and the other being unpublished, had a relatively small sample size of participants with inclusion criteria that didn't correlate with the claims and hadn't been peer reviewed. The other ruling this week related to claims that spirulina could reverse grey hair. The complainant challenged whether the implied claim that spirulina could treat vitamin B12 deficiency, and therefore reverse the growth of grey hair, was a claim that a food could treat clinical vitamin deficiency and treat or cure human disease, which was a breach of the Code and the ASA agreed, (Kollo Health Ltd 22 November 2023, Organic Burst World SA 22 November 2023).

How to mitigate these risks:

  • Consider the perceived environmental impact of the ad
  • Remember it's not just the target audience that will see an outdoor poster
  • Consider the general adult population when creating horror film ads, not just the intended audience
  • Avoid preying on insecurities
  • Check the intention behind the testimonial depiction is clear
  • Check whether regulatory requirements apply to your claims
  • Have a critical friend assess evidence
  • 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