Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Marketers regularly make the claim ‘As seen on TV’, or ‘As seen in [NAME OF PUBLICATION]’. A claim such as this may be included in an ad to give the advertised product extra credence. Various ASA rulings over the last ten years or so have shaped the circumstances in which ‘As seen’ claims should, and should not, be used.
Don’t use these claims to reference paid-for advertising
Make sure your product is readily identifiable
Ensure your product was featured recently
Dont' imply an appearance is editorial evaluation if it's not
Don’t use these claims to reference paid-for advertising
In 2010, the ASA considered a complaint about a national press ad for a vibrating footrest and pad, known as the ‘3 in 1 Electro-Reflexologist’ (Sasaki International Ltd, 17 February 2010). The complainant raised two issues, one of which concerned whether the advertiser could substantiate the claim ‘As seen on TV’. This aspect of the complaint was not upheld, as the advertiser listed the stations on which the product was advertised (some of which we UK based) to the ASA, and provided the associated contracts. The ASA deemed that the ‘As seen on TV’ claim had therefore been substantiated, and was not misleading.
In 2012, the ASA upheld a complaint about ads on the websites of a mattress retailer (Ergoflex Ltd, 21 March 2012). The ads claimed the mattresses were ‘As seen on TV’ and ‘As seen in’, followed by various logos for various media types (such as The Sunday Times, and 4 Homes). The ASA considered that consumers would interpret these claims to mean the newspapers, magazines, broadcasters and programme makers had taken an editorial decision to feature Ergoflex mattresses, thereby constituting independent endorsements.
In fact, when considering the appearance of the product in publications, with one exception, the advertiser had paid for their products to appear. Therefore, ‘As seen in’ claims for all but one of these publications were found to be misleading (as per Rule 3.1), and lacked the necessary substantiation (see Rule 3.7).
Make sure your product is readily identifiable
In the same Ergoflex ruling, the ASA also made clear that they thought consumers would expect the products, when featured in the media in question, to be readily identifiable as Ergoflex products. The ASA acknowledged that the advertiser had supplied various programme makers with their product, and correspondence indicated the featuring of these products was an editorial decision. However, because the product was neither explicitly nor implicitly identified on the programmes, it considered that the claims ‘As seen in’, followed by TV channel logos, and ‘As see on TV’, were misleading, and lacked the required substantiation.
Ensure your product was featured recently
In 2013, a national press ad for a food supplement contained text stating ‘As seen on TV’ (Lifes2good UK Ltd, 9 October 2013). The complainant challenged whether this could be substantiated. The ASA found the claim could be substantiated, as the product was featured in a broadcast in September 2012, and had been identifiably featured. However, they also said consumers would understand ‘As seen on TV’ claims to be referring to recent media coverage. The fact the product featured on a TV programme in 2009 was not sufficiently recent.
Don't imply an appearance is editorial evaluation if it's not
Following these stricter ASA rulings, marketers should be aware that ‘As seen in/on…’ claims are unlikely to be considered substantiated merely because an ad for the product in question has appeared in that referenced publication or TV channel. The ASA is likely to consider that such references imply there has been some form of editorial evaluation, endorsement or independent review, that the product has featured recently, and was readily identifiable in the feature in question.
If the claim is referencing a particular ad, rather than an editorial feature, then marketers should consider amending their claims to “as advertised in...” or similar.