The Advertising Standards Authority (ASA) has passed several notable rulings this month. This article provides examples during the month showing the ASA’s focus continued focus on curbing inaccurate online advertising, particularly with the use of UK TV stars in adverts and with maintaining a high transparency standard on the important topic of sustainability.
Adverts on nutrition products featuring Dragons’ Den star Steven Bartlett banned:
As a director at Huel Ltd and investor in Zoe Ltd, the omission of Steven Bartlett’s commercial interest in each company from their product adverts was found to be misleading by the Advertising Standards Authority (ASA). For example, each of Huel’s adverts included phrases such as “this is Huel’s best product” and “responding to Steven Bartlett” whilst the Zoe advert included the phrase “it might just change your life”. The ASA acknowledged that some consumers might have thought that the adverts were part of a commercial relationship with Steven Bartlett but viewed that many consumers were unlikely to understand from the adverts that Steven Bartlett had a financial interest in both companies’ performance.
The ASA observed that the adverts could seem like an independent review (e.g. product testimonial) and knowing Steven was a relevant director/investor was key for customers to be able to make an informed decision about the product. This was found to be in breach of the CAP Code (Edition 12) rules (paragraphs 3.1 and 3.3) which states that marketing communications must not mislead the consumer by omitting material information needed for a consumer to make an informed decision in relation to a product. The ASA affirmed that the adverts must not appear again in the form complained about and reminded each company to “ensure that future adverts did not misleadingly omit material information regarding commercial relationships”.
Advert promoting headset to treat depression banned:
TV personality, Gemma Collins posted a since deleted Instagram advert in May 2023 for a headset marketed as a treatment for depression. This involved Gemma stating the headset “works faster and better than antidepressants” and “it’s like having your own therapist in the comfort of your own home”. Gemma did provide accompanying text to those experiencing depression by stating that they should “consult your GP always without fail” and “do not stop taking your medication before consulting your GP”. Despite this, the ASA were of the view that this “text did no more than suggest that consumers should arrange a consultation with a GP before starting to use the device”.
The advert went against the NHS website guidance whereby it is not recommended to “discontinue antidepressant use without supervision by a medical professional because of the potentially serious physical and mental side effects”. The ASA therefore stated that the advert “trivialised the decision to come off antidepressants or not take them at all and encouraged people to take their treatment into their own hands”. The observed suggestion was therefore that the headset was better than taking prescribed medication (e.g., anti-depressant pills and therapy).
The ASA held that the advert discouraged essential treatment for conditions for which medical supervision should be sought and hence breached the CAP Code (paragraph 12.2). Flow Neuroscience AB t/a Flow (the headset manufacturer) were reminded to prevent this discouragement from occurring again. The ASA have recently released their top tips to help ensure influencer marketing is responsible.
Virgin Atlantic advert banned for misleading consumers:
A Virgin Atlantic radio advert heard on 24 November 2023 claimed that the airline was set to be the first commercial airline to fly transatlantic on 100% sustainable aviation fuel. This advert has been banned for misleading consumers and giving a misleading impression of the fuel’s environmental impact. Virgin Atlantic explained that the background to the flight mentioned in the advert was that Virgin Atlantic were announced as winner of a competition run by the Department of Transport. They raised various arguments such as emphasising the advert’s wording mirrored the terms used by the Department for Transport from its competition invitation which Virgin Atlantic participated in and that consumers would understand the advert to be a reference to a type of fuel made from sustainable sources and that consumers would not think the emissions did not generate carbon dioxide or other emissions that had an adverse environmental impact.
The ASA held that the advert should be banned as the claim of “100% sustainable aviation fuel” was misleading advertising as a significant proportion of consumers would understand the claim “100% sustainable aviation fuel” to mean that the fuel used was 100% sustainable. The ASA held that the consumer was left with the impression that sustainable aviation fuel had no carbon emissions or a wider environmental impact. The advert was in breach of the BCAP Code (rules 3.1, 3.2, 9.2, 9.3 and 9.5).
Mike Lockwood (ASA director of complaints and investigation) has made various comments that are relevant for advertisers commenting on sustainability. For example, he stated that “business need to be wary of using statements like “100% sustainable or “sustainable” when advertising. He commented further that “claiming that a product or service is sustainable creates an impression that it is not causing harm to the environment and for that reason we expect to see robust evidence that this is the case”. If you’d like to have a further read regarding the ASA’s position on issues such as misleading environmental claims and social responsibility, they have released recent guidance to consolidate their position. If you would like to find out more information on how to improve your advertising campaigns in line with the required compliance or have any questions concerning the topics discussed, please contact us to speak to a member of our Commercial Law team.
The upcoming trials are expected to shed light on the actions of the defendants and further details regarding the scheme and will provide an important reference for how the unauthorised promotion of financial products online will be handled by the law going forward. This ongoing case is a reminder to finfluencers to ensure that their use of social media to communicate financial promotions does not sidestep matters such as consumer protection and relevant advertising standards. If you have any queries in relation to online financial promotions or how to adapt your current policies and procedures to be compliant with the relevant requirements, Herrington Carmichael have the skills and experience to assist you. Please contact us to speak to a member of our Media Law team.
