SECTION 5: MISLEADING ADVERTISING

Background:

Television advertising can be a powerful medium for communicating advertising messages but is unsuited to providing consumers with detailed, permanent information about products and services. The rules in this Section are therefore designed (amongst other things) to ensure that advertising does not misrepresent the nature, benefits and limitations of advertised offers.

5.1 DEFINITION OF MISLEADING ADVERTISING

Rule 5.1 and the Notes that accompany it have been amended to correctly reflect the Consumer Protection from Unfair Trading Regulations 2008.  Rule 5.1 has been replaced by rule 5.1.1, which applies to advertisements that appear after 21 November 2008.

No advertisement may directly or by implication mislead about any material fact or characteristic of a product or service 

Notes:

(1) See also 7.1 (Misleading advertising and children) for additional rules about advertising for products and services likely to be of interest to children.

(2) Advertising is likely to be considered misleading if, for example, it contains a false statement, description, illustration or claim about a material fact or characteristic. Material characteristics include price, availability and performance. Any ambiguity which might give a misleading impression must be avoided.

(3) Even if everything stated is literally true, an advertisement may still mislead if it conceals significant facts or creates a false impression of relevant aspects of the product or service.

(4) Scientific terms or jargon, statistics and other technical information should not be used to make claims appear to have a scientific basis that they do not possess. Equally, statistics of limited validity must not be presented in such a way as to mislead, for instance by implying that they are universally true.

(5) An advertisement may be misleading even if it does not directly lead to financial loss or a misguided purchasing decision. The ASA and BCAP may also regard an advertisement as misleading if, for example, it causes viewers to waste their time making enquiries, only to find that offers are unavailable or that there are important limitations. This could involve encouraging viewers to visit shops, or to make lengthy telephone calls (including freephone calls).

(6) When assessing whether an advertisement is misleading, the ASA and BCAP consider the overall impression likely to be conveyed to a reasonable viewer. They do not consider the intentions of the advertiser, nor simply whether the advertising meets legal or other regulatory requirements.

(7) In addition to its delegated powers under the Communications Act 2003, the ASA has a duty to enforce the Control of Misleading Advertisements Regulations 1988 (as amended).

An advertisement is misleading if:

            (a) it is likely to deceive those who see it and

            (b) as a result of that deception, is likely to affect consumers' economic behaviour or

            (c) for the reasons given in (a) and (b), it injures or is likely to injure a competitor of the person whose interests the advertisement promotes.

5.1.1 

No advertisement may directly or by implication mislead about any material fact or characteristic of a product or service

5.1.2

No advertisement may mislead by omission about any material fact or characteristic of a product or service or advertiser  

This rule reflects the Consumer Protection from Unfair Trading Regulations 2008. This rule applies to advertisements that appear after 21 November 2008.  

Notes:

(1) See also 7.1 (Misleading advertising and children) for additional rules about advertising for products and services likely to be of interest to children.

(2) Advertising is likely to be considered misleading if, for example, it contains a false statement, description, illustration or claim about a material fact or characteristic. Material characteristics include price, availability and performance. Any ambiguity which might give a misleading impression must be avoided.

(3) Even if everything stated is literally true, an advertisement may still mislead if it conceals significant facts or creates a false impression of relevant aspects of the product or service.

(4) Scientific terms or jargon, statistics and other technical information should not be used to make claims appear to have a scientific basis that they do not possess. Equally, statistics of limited validity must not be presented in such a way as to mislead, for instance by implying that they are universally true.

(5) An advertisement may be misleading even if it does not directly lead to financial loss or a misguided purchasing decision. The ASA and BCAP may also regard an advertisement as misleading if, for example, it causes viewers to waste their time making enquiries, only to find that offers are unavailable or that there are important limitations. This could involve encouraging viewers to visit shops, or to make lengthy telephone calls.

(6) When assessing whether an advertisement is misleading, the ASA and BCAP consider the overall impression likely to be conveyed to the average consumer who it reaches. They do not consider the intentions of the advertiser, nor simply whether the advertising meets legal or other regulatory requirements.    

5.1.3  

Advertising must not omit, hide or provide in an unclear, unintelligible, ambiguous or untimely manner material information if that omission or presentation is likely to affect consumers’ decisions about whether and how to buy the advertised product, unless the information is obvious from the context. If the advertisement is limited by time or space, the ASA will take into account steps that the advertiser has taken to make that information available to consumers by other means.  

This rule reflects the Consumer Protection from Unfair Trading Regulations 2008. This rule applies to advertisements that appear after 21 November 2008.  

5.1.4  

For advertisements that quote prices for advertised products, material information includes:  

(a) the main characteristics of the product  

(b) the identity (eg trading name) and geographical address of the advertiser and any other trader on whose behalf the advertiser is acting  

(c) the price of the advertised product, including taxes; or where the nature of the product is such that the price cannot be calculated in advance, the manner in which the price is calculated  

(d) delivery charges  

(e) the arrangement for payment, delivery, performance or complaint handling, if those differ from the arrangements that consumers are likely to reasonably expect  

(f) that consumers have the right to withdraw or cancel, if they have that right.   

These rules reflect the Consumer Protection from Unfair Trading Regulations 2008. These rules apply to advertisements that appear after 21 November 2008. 

5.2 CLAIMS

5.2.1 Evidence 

Licensees must obtain adequate objective evidence to support all claims

Notes:

(1) Where a claim is based on scientific research or testing, that work should have been conducted in accordance with recognised best practice. Where licensees lack the specialised knowledge to assess the adequacy of evidence, they must consult independent experts.

(2) Licensees must make their own independent assessment of evidence submitted in support of advertising, and of any advice they have commissioned.

(3) Absolute claims – eg ‘best on the market’, ‘lowest prices guaranteed’ – should be avoided unless they are backed up by clear evidence and are based on a formula on which an advertiser can completely deliver. In particular, licensees should be alert to the fact that such claims may be invalidated by sudden changes in the market or the actions of competitors while the advertising is still on air. For this reason, absolute price claims should be treated with great caution.

(4) Under the Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Misleading Marketing Regulations 2008, the ASA is empowered to regard a factual claim as inaccurate unless adequate evidence of accuracy is provided to it when requested.

(5) A claim can be implied or direct, written, spoken or visual. The name of a product or service may in itself be regarded as a claim. 

5.2.2 Implications 

Descriptions, claims and illustrations must not imply attributes, capabilities or performance beyond those that can be achieved in normal use 

5.2.3 Qualifications 

All important limitations and qualifications must be made clear 

Note:

Important limitations and qualifications include those on availability, particularly where failure to mention such conditions is likely to lead viewers to assume that an advertised offer is available on equal terms to all who might see it. Such restrictions might include geographical restrictions, limited numbers of purchases per person, age or sex restrictions etc. 

5.2.4 Use of the word ‘free’

Rule 5.2.4 has been amended to correctly reflect the Consumer Protection from Unfair Trading Regulations 2008. Rule 5.2.4 has been replaced by rule 5.2.11, which applies to advertisements that appear after 21 November 2008. 

(a) Advertisements must not describe an offer as ‘free’ if there are costs to consumers other than actual postage or carriage, non-premium rate telephone charges or reasonable travel required to collect the offer. Advertising must make clear the extent of the consumer’s liability for any costs

Notes to 5.2.4(a):

(1) Trials can be described as free even if the customer has to pay the costs of returning the goods, provided this is made clear in the advertising.

(2) Making clear the extent of liability would include, for example, explaining the need to collect tokens, or to travel a considerable distance to redeem an offer. 

b) No element of an offer may be described as ‘free’ if viewers are likely to be misled as to whether it is genuinely additional to the offer 

5.2.5 Guarantees 

Advertisements must make clear significant limitations to an advertised guarantee 

Notes:

(1) This rule applies equally to ‘warranty’ and similar terms.

(2) This does not prevent the colloquial use of the word ‘guarantee’ where there is no risk of it being construed as part of an offer. For instance ‘guaranteed to make you laugh’.

5.2.6 Environmental claims 

Advertisements must not make unsubstantiated claims about environmental impact 

Note:

Best practice on environmental impact claims is contained in ISO 14021 and the Department for the Environment, Food and Rural Affairs’ Green Claims Code. Licensees must satisfy themselves that any departure from this best practice is justified.

5.2.7 Animal testing

Claims that a product has not been tested on animals are unlikely to be acceptable

Notes:

(1) Even though a finished product has not been tested on animals, it will normally be very difficult to prove that none of the materials used in its manufacture have ever been tested in that way.

(2) Some statements about, for example, an advertiser’s opposition to animal testing may breach rule 4 (Political and controversial issues). This requires television advertising to be impartial on matters of political controversy and public policy.

5.2.8 Pressure to purchase

(a) Advertisements must not falsely claim that the advertiser is about to cease trading or move premises. They must not falsely state that a product, or the terms on which it is offered, will be available only for a very limited time in order to deprive  consumers of the time or opportunity to make an informed choice  

(b) Advertisements must not mislead consumers about market conditions or the possibility of finding the product elsewhere in order to induce consumers to buy the product at conditions less favourable than normal market conditions  

(c) Advertisements must not explicitly claim that, if consumers do not buy the advertised product or service, the advertiser’s job or livelihood will be jeopardised  

These rules reflect the Consumer Protection from Unfair Trading Regulations 2008. These rules apply to advertisements that appear after 21 November 2008.  

5.2.9 After-sales service

(a) If an advertisement in a language other than English offers after-sales service, licensees must be satisfied that the advertiser will tell consumers, before a contract is concluded, if the after-sales service is not available in the language of the advertisement.  

(b) Advertisements must not falsely claim or imply that after-sales service is available in a state that forms part of the European Economic Area other than the state where the advertised product is sold

These rules reflect the Consumer Protection from Unfair Trading Regulations 2008. These rules apply to advertisements that appear after 21 November 2008.  

5.2.10 Exaggeration  

(a) Advertisements must not present rights given to consumers in law as distinctive features of the advertiser’s offer  

(b) Advertisements must not mislead about the nature or extent of the risk to consumers’ personal security if they do not buy the advertised product  

These rules reflect the Consumer Protection from Unfair Trading Regulations 2008. These rules apply to advertisements that appear after 21 November 2008.  

5.2.11 Use of the word ‘free’  

(a) Advertisements must not describe an offer as ‘free’, or similar, if there are costs to consumers other than actual postage or carriage, non-premium rate telephone charges or reasonable travel required to collect the offer. Advertising must make clear the extent of the consumer’s liability for any costs  

This rule reflects the Consumer Protection from Unfair Trading Regulations 2008. This rule applies to advertisements that appear after 21 November 2008.  

Notes to 5.2.11(a):

(1) Trials can be described as free even if the customer has to pay the costs of returning the goods, provided this is made clear in the advertising.

(2) Making clear the extent of liability would include, for example, explaining the need to collect tokens, or to travel a considerable distance to redeem an offer.  

(b) No element of an offer may be described as ‘free’ if viewers are likely to be misled as to whether it is genuinely additional to the offer 

5.3 PRICE CLAIMS

5.3.1 Accurate pricing

Indications of actual or comparative prices, or the manner in which a price is to be calculated, must be accurate and must not mislead by omission, undue emphasis or distortion

Note to 5.3.1:

The Consumer Protection from Unfair Trading Regulations 2008  lay down the statutory framework for indications of price, price comparisons and reductions. In addition the DBERR has issued a Pricing Practice Guide and licensees are advised to refer to this.

5.3.2 Pricing requirements

Rule 5.3.2 has been amended to correctly reflect the Consumer Protection from Unfair Trading Regulations 2008. Rule 5.3.2 has been replaced by 5.3.3, which applies to advertisements that appear after 21 November 2008. 

(a) Quoted prices must be inclusive of all non-optional taxes, duties and fees which apply to all buyers 

Notes to 5.3.2(a):

(1) Areas where this is particularly relevant include flight and cruise advertising.

(2) If a non-optional charge is variable and therefore impossible to quantify, advertising should make clear that it is excluded from the quoted price.

(3) Television advertising is regarded by the ASA and BCAP as generally being a business-to-consumer medium. Advertising quoting only VAT exclusive pricing would be appropriate only in exceptional circumstances.

5.3.3 Pricing requirements

(a) Quoted prices must be inclusive of all non-optional taxes, duties and fees, including freight, delivery or postal charges, which apply to all buyers.  If such charges cannot reasonably be calculated in advance, advertisers must state that additional charges may be payable.   

This rule reflects the Consumer Protection from Unfair Trading Regulations 2008. This rule applies to advertisements that appear after 21 November 2008.  

Notes to 5.3.3(a):

(1) Areas where this is particularly relevant include flight and cruise advertising.

(2) Television advertising is regarded by the ASA and BCAP as generally being a business-to-consumer medium. Advertising quoting only VAT exclusive pricing would be appropriate only in exceptional circumstances.

(b) Where goods are available on an instalment basis and the individual instalment costs are given, the total price of the goods must be equally prominent. If the instalment frequency is other than monthly, this must be made clear 

Note to 5.3.3(b):

In practice, this is likely to apply only when goods are to be paid for in four or fewer instalments. Advertising for schemes involving more than four instalments is likely to be subject to the Consumer Credit (Advertisements) Regulations 2004. 

(c) Where the headline cost of goods and services available by mail order or other distance selling means does not include delivery, the delivery charge must be clearly indicated beside the headline price.

Note to 5.3.3(c):

Rule 11.2 deals specifically with distance selling. Licensees should also refer to the Consumer Protection (Distance Selling) Regulations 2000. 

5.3.4 Availability of products advertised at a specified price

(a) Advertisements must state any reasonable grounds the advertisers might have for believing that they might not be able to supply the advertised or an equivalent product at the advertised price, within a reasonable period and in reasonable quantities  

(b) Licensees must be satisfied that the advertisers will not use the technique of switch selling, where their sales staff refuse to show the advertised product, refuse to take orders for it or to deliver it within a reasonable time, or demonstrate a defective sample of it, in order to promote a different product  

These rules reflect the Consumer Protection from Unfair Trading Regulations 2008. These rules apply to advertisements that appear after 21 November 2008. 

5.4 CREATIVE TREATMENTS

5.4.1 Visual techniques and special effects 

Advertisements must not use any technique that is likely to give a misleading or unfair impression of the product or service  

Note:

This does not prevent the use of techniques to overcome technical problems in filming: for example, the use of a visually identical material as a substitute for ice cream which would melt under lights. But it would prevent the use of glass sheeting to exaggerate the effects of floor polish. 

5.4.2 Superimposed text 

(a) Text in advertisements must be legible and must comply with BCAP Guidance on On-screen Text and Subtitling in Television Advertisements

(b) Whilst text may expand or clarify a claim, or add minor qualifications, it must not contradict the claim

Notes to 5.4.2:

(1) Advertising can mislead if text intended to qualify a claim or offer is too long, complicated or obscurely expressed to be easily absorbed by viewers in one viewing.  

5.4.3 Denigration

Advertisements must not discredit or unfairly attack other products or services, advertisers or advertisements either directly or by implication

5.4.4 Testimonials

Rule 5.4.4 has been amended to correctly reflect the Consumer Protection from Unfair Trading Regulations 2008. Rule 5.4.4 has been replaced by rule 5.4.9, which applies to advertisements that appear after 21 November 2008.

Testimonials or endorsements used in advertising must be genuine and be supported by documentary evidence. Fictitious testimonials must not be presented as genuine. Any statement in a testimonial that is likely to be interpreted as a factual claim must be substantiated 

Note:

In ambiguous cases it may be necessary to indicate, for example, that an advertisement features actors presenting the advertiser’s opinion, or that those giving testimonials are employees or relatives of employees of the advertiser. 

5.4.5 Subliminal advertising 

No advertisement may use images of very brief duration, or any other technique which is likely to influence viewers, without their being fully aware of what has been done 

5.4.6 Comparative advertising 

There must be no realistic likelihood that viewers will be misled as a result of any comparison, whether about the product or service advertised or that with which it is compared 

Notes:

(1) Comparative advertising is regulated by the Business Protection from Misleading Marketing Regulations 2008.   They state that an advertisement is ‘comparative’ if it explicitly or by implication identifies a competitor or its goods or services.

(2) For the purposes of this Code, however, ‘comparative advertising’ extends beyond the narrow definition contained in the statutory regulations and covers comparisons of a more general kind where a competitor is not identified.

(3) Whilst only the courts can decide the precise meaning of the law, the following points may be helpful:

A comparative advertisement is acceptable if:

            (a) it is not misleading

            (b) it compares goods or services meeting the same needs or intended for the same purpose

            (c) it objectively compares material, relevant, verifiable and representative features (which may include price)

            (d) it does not create confusion between the advertiser and the competitor, or between their respective

            trade marks, trade names, other distinguishing marks, goods or services

            (e) it does not discredit or denigrate

            (f) it does not take unfair advantage of a competitor’s trade marks, trade names or other distinguishing marks, or of the designation of origin of competing products

            (g) it does not present goods or services as imitations or replicas.

In addition:

            (h) products with designation of origin may only be compared with other products with the same designation

            (i) comparisons relating to special offers must indicate when the offer ends or, where appropriate, that the offer is subject to availability. 

5.4.7 Identification of the advertiser 

Rule 5.4.7 has been amended to correctly reflect the Consumer Protection from Unfair Trading Regulations 2008. Rule 5.4.7 has been replaced by rule 5.4.11, which applies to advertisements that appear after 21 November 2008.

The identity of the advertiser must be made clear if advertising might otherwise be misleading

Note:

Viewers could be misled if, for example, advertising by a commercial company appeared to be part of a charity or public service campaign.

5.4.8 Imitation

Advertisements must not mislead consumers about who manufactures the product  

This rule reflects the Consumer Protection from Unfair Trading Regulations 2008. This rule applies to advertisements that appear after 21 November 2008.    

5.4.9 Testimonials  

Testimonials or endorsements used in advertising must be genuine and be supported by documentary evidence. Fictitious testimonials must not be presented as genuine. Testimonials that are likely to be interpreted as a factual claims must not mislead consumers.  

This rule reflects the Consumer Protection from Unfair Trading Regulations 2008. This rule applies to advertisements that appear after 21 November 2008.  

Note:

In ambiguous cases it may be necessary to indicate, for example, that an advertisement features actors presenting the advertiser’s opinion, or that those giving testimonials are employees or relatives of employees of the advertiser.    

5.4.10 Endorsements  

(a) Advertisements must not display a trust mark, quality mark or equivalent without the necessary authorisation and must not claim that the advertiser (or any other entity referred to in the advertisement), the advertisement or the advertised product has been approved, endorsed or authorised by a public or private body if it has not or without complying with the terms of the approval, endorsement or authorisation  

(b) Advertisements must not falsely claim that the advertiser, or other entity referred to in the advertisement, is a signatory to a code of conduct.  They must not falsely claim that a code of conduct has an endorsement from a public or other body  

These rules reflect the Consumer Protection from Unfair Trading Regulations 2008. These rules apply to advertisements that appear after 21 November 2008.    

5.4.11 Identification of the advertiser  

(a) The identity of the advertiser must be made clear if advertising might otherwise be misleading

(b) Advertisements must not create a false impression that the advertisers are acting as consumers or for purposes outside their trade, business, craft or profession  

These rules reflect the Consumer Protection from Unfair Trading Regulations 2008. These rules apply to advertisements that appear after 21 November 2008.  

Note:

Viewers could be misled if, for example, advertising by a commercial company appeared to be part of a charity or public service campaign.