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.
Often product names include a claim about the product. Often these are health and weight loss claims, or objective claims about the product. The Code will apply to claims which appear in product or company names in the same way as it does to the rest of the ad. Marketers should avoid making any claims in their product or company name, unless the claim is an acceptable clam which can be made about the product.
Health claims in names for food products.
If a product name states or implies a health or nutrition claim, it must be accompanied by a relevant authorised health or nutrition claim, in line with section 15 of the Code.
In 2018 the ASA considered that the product name claim “carb blocker” was a health claim. The ASA noted that Article 1(3) of the EC Regulation 1924/2006 on nutrition and health claims made on foods allowed that a trade mark or brand name appearing in the advertising of a food, which may be construed as a nutrition or health claim, may be used provided that it was accompanied by a permitted nutrition or authorised health claim in that advertising. The ASA considered that in such instances the accompanying nutrition or health claim must bear relevance to the nutrition or health claim made in the trade mark or brand name. Because the product name “Carb Blocker”, was a health claim which was not accompanied by an authorised health claim which was on the EU Register it breached the Code (Protein World Ltd, 21 March 2018).
However an exception to this may apply to some ads. Registered trademarks or brand names that existed before 1 January 2005 do not have to comply with this requirement until January 2022. Marketers must seek legal advice for relevant transitional periods (see Vitabiotics Ltd, 26 March 2014). In 2018 the ASA upheld a complaint for an ad for a tea called “Detox tea” because the name had not been registered as a trade mark before 1 January 2005, and the health claim “detox” was not accompanied by an authorised health claim. Whilst the advertiser asserted that the transitional period applied to the product name because they had been selling the product and had invested in the name before 2005, the ASA did not consider that this meant that the transitional period applied in this case (Pukka Herbs Ltd, 16 May 2018).
However, even when claims in registered trade marks are not required to be accompanied by an authorised health claim due to this exception, claims must still not be likely to mislead. In the past the ASA has expected marketers to include a prominent statement to disclaim the implied claim made in a product name, where the claim was likely to mislead, as well as ensuring that the overall context of the ad does not create a misleading impression. In 2011, the ASA considered that naming a weight loss aid ‘tummy tuck sticks’ was likely to misleadingly imply that the product could achieve weight loss from a specific part of the body. The name was registered as a trade mark before 2005, however because the claim was likely to mislead the ASA told the advertiser to ensure that the copy included a prominent disclaimer in future (Rodial Ltd, 9 March 2011).
Book and publication titles
Code rule 3.8 states that “Claims for the content of non-fiction publications should not exaggerate the value, accuracy, scientific validity or practical usefulness of the product. Marketers must ensure that claims that have not been independently substantiated but are based merely on the content of a publication do not mislead consumers”. If the title of a book or publication constitutes an objective claim, it may be featured in advertising providing the title is put in inverted commas and the first reference to it is followed immediately by the author's name. A claim such as “How to cure depression by drinking tea” would normally be unacceptable because not only does it target sufferers of a serious medical condition (contrary to Rule 12.2), it is also unlikely that the advertisers would be able to substantiate it. But, if that claim forms the title of the book, it would be acceptable to state “"How to cure depression by drinking tea" by John Smith” provided the accompanying copy conveys the content of the book in discursive terms, for example “the author discusses depression and examines the validity of various treatments”.
Responsibility, harm and offence
When promoting products or services, marketers must ensure that the name of the product or service is not irresponsible. The ASA has upheld a complaint about an ad that featured a book called “SIX WEEKS TO OMG, GET SKINNIER THAN ALL YOUR FRIENDS” on the grounds that it could encourage vulnerable individuals to engage in competitive dieting or unhealthy eating habits. (Michael Joseph Ltd, 3 October 2012).
Ads must not cause harm, or serious or widespread offence, and marketers should be conscious of this when advertising any product. Advertisers may need to consider context, medium and audience when advertising some products, such as those which include swearing in the name, to ensure that they are targeted appropriately.
See Offence: general