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.
On a number of occasions, the ASA has found that a product name can imply an unproven effect. If it breaches the CAP Code, a claim is likely to be problematic, whether it appears in the copy, the product name, or the company name. As such, marketers should amend the name of their product, so that it does not incorporate an unproven claim. The only exception to this rule occurs when the product name is a registered trade mark. In that case, marketers will need to include a prominent statement to disclaim the implied claim, as well as ensuring that the overall context of the ad does not create a misleading impression.
In 2008, the ASA held that the product name “Fat Stripper” misleadingly implied that a product would cause fat loss. Although the ad included a disclaimer, it was small and likely to be overlooked by most readers. In any event, the ASA concluded that the disclaimer contradicted the implied efficacy claim in the product name. Because it was not a registered trade mark, the ASA told the advertiser not to use the product name in its marketing material again (LA Muscle Ltd, 27 February 2008).
In November 2011, the ASA ruled that the name of the food supplements Shape, Tone and Sculpt misleadingly implied that the products had shaping, toning or sculpting effects. The copy featured a slim woman lying on the floor with her back arched and included a disclaimer which stated that the product name did not imply efficacy. Despite the disclaimer, the ASA considered that the overall impression given by the ad was misleading (bio-synergy Ltd, 30 November 2011). Similarly, 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. Because the product name was a registered trademark, the ASA told the advertiser to ensure that the copy included a prominent disclaimer in future (Rodial Ltd, 9 March 2011).
Marketers of books or other publications should note that referring to the titles of publications that incorporate unproven claims is likely to be acceptable provided that the title is expressed in quotation marks and is immediately followed by the author’s name.