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 these 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). Frequently, 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. For instance, an individual who used to work in a sector who is now providing advice on what to purchase in that sector may be independent, but it may be unlikely they would be completely impartial. 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. Rule 2.3 states “Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not apparent from the context*…”. In 2023, the ASA investigated an ad for an estate agent referral site, GetAgent. The ASA considered that consumers would expect the site to recommend consumers an estate agent based on objective data and the order of agents should have been representative of GetAgent’s impartial recommendations. However, they found that the agents who had signed up to the website, and/or those from whom GetAgent had earned commission in the past, were given preferential positions in the listings (GetAgent Ltd, 6 December 2023).
Similarly, in 2024, as part of larger work on rehab clinic referral companies, the ASA identified several companies who were breaching the Code. They found that a number of companies, many of whom claimed to offer free, impartial, expert advice on addiction treatment actually earned commission for specific referrals, providing a commercial incentive to place individuals in certain clinics (Which Rehab Ltd, 18 December 2024). They also found some were acting for purposes outside their business, a breach of rule 2.3 (Serenity Rehabilitation Ltd, 21 June 2023 and UK Addiction Treatment Ltd, 18 December 2024).
CAP has also seen an increase in review sites or advertorials that purport or imply that they are providing impartial or independent reviews or advice, but are in fact receiving payment or commission (Asav Consultancy Ltd t/a Vibes CBD, 26 October 2022) or are in fact a marketer in the sector themselves (Emma Matratzen GmbH t/a Emma Mattress, 8 November 2023 and HeyNutrition Ltd, 27 July 2022). Non-disclosure of payment and commission is highly likely to breach the Code, as is hiding the identity of the marketer by pretending to offer unbiased reviews or rankings, and any commercial incentive should be made clear. See also Recognising Ads: Overview.
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 Steel & 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.
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. In 2023, the ASA upheld complaints about an ad for Ben’s Gutters plumbing firm. The ad, which featured a handwritten-style font, a mobile number and a smiley face written on a compliments slip, gave the impression of a small, independent local business or tradesperson, rather than a large national company (Ben's Gutters Ltd, 20 December 2023).
See also Funeral Services, Company Names and URLs, Claims in Product Names, Types of Claims: Established Since, Promotional Marketing: Independent Judges and Observers and Ghost addresses and 'Local' claims.