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.
The ASA has investigated complaints that companies are “independent” or “impartial”. Although the claim might mean different things (depending on the context, including the nature of the product being advertised, the surrounding wording, the media in which it appears etc), the ASA has tended to take a strict line on those types of claims. There are some sectors in which claims to be ‘independent’ are more prevalent or compelling than others. Sometimes the claim is used to convey a personal level of service, expertise, quality or attention to detail that might be perceived as missing from bigger organisations (such as in the funeral services sector). And sometimes the claim might be used to convey a high level of trustworthiness and impartiality.
Sometimes, the ASA has drawn a distinction between impartiality and independence, seeing impartiality as one, but not the only, fundamental prerequisite of independence. In an adjudication against The Marble Services Network (The Marble Services Network, 10 May 2000), the ASA concluded that an advertiser’s claim to offer “independent advice” on “the most appropriate marble company for your needs” was misleading. The advertiser argued that, because he was no longer working in the marble industry, his recommendations were genuinely independent. The ASA noted he recommended friends and relatives and did not have “60 companies registered” with his network as claimed. Even if they have no direct commercial interest in their recommendations, marketers should not claim to be independent if they are not also impartial.
Independence can be judged according to commercial interest. The ASA upheld a complaint against an ad for an advisory service for home improvements that claimed “free advice … the best impartial advice”. The complainant submitted evidence that the advertiser did not offer impartial or independent advice because it recommended companies owned by its employees (Advisory Services Ltd, 1 February 2006).
Conversely, the ASA judged that Simply Switch’s utilities comparison service was independent despite the fact that some of the suppliers paid Simply Switch a commission when customers signed up as a result of a Simply Switch recommendation. Simply Switch claimed to be “Independent – not owned by any supplier” and to offer an “impartial switching service”. Indeed, Simply Switch compared the prices of all suppliers, not just those with which it had a commission arrangement, although it could switch customers over only to those suppliers with which it had a relationship. The ASA deemed that Simply Switch could refer to its comparison service (and to its company) not only as impartial but even as independent, provided that Simply Switch made clear that the switching part of the service was limited to those suppliers with which it had a commercial agreement. (Simply Energy t/a Simply Switch, 24 May 2006).
Although commercial considerations might preclude genuine impartiality, the presence of a commercial relationship does not necessarily preclude description of a service as impartial or independent. In 2012, the ASA concluded that it was acceptable for a regional estate agent to describe itself as “part of the UK’s largest independent estate agency group” (because the meaning of the claim was qualified) but could not describe itself as “independent” (SpicerHaart Group Ltd t/a Darlows, 16 May 2012).
Also in 2012, the ASA ruled that it was acceptable for a funeral home to claim it was “independent” because the owners were also directors and took an active role in the day to day running of the firm. They were also directors of other funeral homes which they did not play an active role in and the ASA ruled that the other companies could not be described as “independent” (Richard Steele & Partners Ltd, 16 May 2012; Michael Miller & Partners Ltd, 23 March 2011; Nigel Chamberlain &Partners Ltd, 16 March 2011; A H Cheater Ltd, 16 March and Roger Poat & Partners, 16 May 2011).
Marketers sometimes refer to “independent” tests or trials in marcoms. Again, although the existence of a consideration (financial or otherwise) does not necessarily prejudice the outcome of those tests, readers are likely to infer from the claim that those results are free from bias. In reaching its decision about a claim to be an “independent laboratory”, the ASA accepted that an independently established, owned and operated laboratory could be ‘independent’ while also collaborating with third parties but considered that its independence would be determined by the nature of its relationships with those collaborators and its clients (The International Centre for Nutritional Excellence Ltd, 25 January 2012).
The Code states that marketing communications should not mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise. Marketers should ensure that the impression created by an ad, and not merely individual claims, complies with the spirit and the letter of the Code. The ASA has upheld complaints against marketers’ ads that have implied independence or impartiality, even when neither those nor similar words appeared in the ads. For example, in 2005, the ASA upheld a complaint against the Anne Marie Women’s Centre (Anne Marie Women’s Centre, 16 Feb 2005) and judged that the pro-life group ad’s claims “Confidential and Friendly information & services related to: Abortion … Emergency Contraception” misleadingly implied that the organisation offered impartial advice, including advice on obtaining an abortion (which, as a pro-life group, it did not). Similarly, in 2000, the ASA judged that the claim “Captain Value Mad searches prices on the web to bring together the best value” on items from CDs to holidays was misleading. That was because the service searched only across sites that had commercial relationships with the advertiser. In short, the ad misled by omission because, without clarification to the contrary, readers were likely to infer that the search engine was impartial or independent (Asda Group t/a Valuemad, 14 June 2000).