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.
Our next event, Advice:am2pm, will include a session on Misleading Advertising.
Around 70% of the cases considered by the ASA each year relate to potentially misleading advertising and Section 3 of the Code sets out the ways in which ads risk misleading consumers, from omission and pricing, to comparative claims about competing products.
- Don’t mislead consumers materially
- Don’t omit material information
- Ensure you can substantiate objective claims
- Distinguish between objective claims, subjective claims and puffery
- Don’t exaggerate
- Ensure objective comparative claims are fair and verifiable
- Remember, it’s not only about the letter of the Code!
Rule 3.1 states “Marketing communications must not materially mislead or be likely to do so”. When considering whether business to consumer advertising is misleading, the ASA will take factors identified in the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) into account, including how the average consumer will interpret the ad and whether it is likely to cause consumers to take a transactional decision that they otherwise wouldn’t have taken.
Marketing communications will be assessed on the overall impression they are likely to give consumers, as well as specific claims and images, so marketers should be mindful of the need to consider the likely interpretation of an ad as a whole, rather than individual elements alone.
Marketers wishing to run business to business marketing should have regard to the Business Protection from Misleading Marketing Regulations 2008 as well as the CAP Code.
Marketing communications which omit material information, making it difficult for consumers to make informed decisions about a marketer’s product or service, are likely to breach rule 3.3, which states that marketing communications must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
In 2015, the ASA upheld a complaint that the prices of flights on an online travel agent’s website were misleading because they included a pre-applied discount, which was only available for those paying via Entropay, a pre-paid visa card. The ASA ruled that the omission of information making it immediately clear that the prices did not apply to those paying by another method and the non-optional fees which applied when loading the necessary funds to an Entropay card prior to purchase, the ad was misleading (Opodo Ltd, 16 December 2015).
Marketers should ensure that they hold evidence to support all claims that are likely to be interpreted as objective (rule 3.7). In the absence of sufficient evidence, the ASA is likely to consider objective claims misleading. The type of evidence likely to be required by the ASA will depend on the level of claim concerned and the context in which it appears. For specific guidance on the evidence which is likely to be required for particular types of claims, please see "Types of Claims: General", "Types of Claims: No 1", "Types of Claims: Parity and Top Parity", "Types of Claims: Leading", "Types of Claims: Best" and "Substantiation: Sampling References and Consumer Goods".
In February 2016, the ASA ruled against claims that a fuel catalyst product for vehicles “improves fuel combustion which means better MPG and lower CO2 emissions for both petrol and diesel engines", "Cuts emissions by 30 - 50% and improves MPG" and "makes a positive environmental contribution to a cleaner atmosphere", because the advertiser did not hold adequate supporting evidence. While the advertiser provided documentation, including details of tests, press releases, customer testimonials and magazine articles, the ASA concluded that they weren’t sufficiently robust to support the claims (D Lock & Associates t/a Broquet, 24 February 2016).
Under rule 3.2, obvious exaggerations (“puffery”) and claims that the average consumer is unlikely to take literally are permitted by the Code, provided they aren’t likely to mislead materially. Marketers should tread carefully here and be mindful of the fact that if the ASA considers a claim to be objective and capable of substantiation, they are likely to rule the claim misleading in the absence of adequate substantiation, even if the marketer’s intention was to make a subjective claim.
In 2014, the ASA considered whether the claim "The most comfortable beds in the world", in an ad for Hypnos beds, was misleading and could be substantiated and they agreed with the advertiser’s view that the claim was subjective, given the experienced comfort of mattress types would vary between consumers (Hypnos Ltd, 26 November 2014). Conversely, the ASA disagreed with Challs International Ltd’s view that the claims, “No.1 for Bathroom Plughole Blockages" and "No.1 for Kitchen Blockages", for drain cleaning products, were puffery. The ASA considered that consumers would interpret the claims as meaning the products were the best-selling plughole and domestic drain cleaning products that could deal with the specified type of blockage, outselling competitors’ products, but the data provided by Challs did not demonstrate that their products outsold all others in their category (Challs International Ltd, 17 February 2016).
See "Types of Claims: Subjective or Objective Superlative", "Types of Claims: Best", "Types of Claims: Parity and Top Parity" and other “Types of Claims” entries.
Marketers should take care to ensure they don’t exaggerate the capability or performance of a product, in line with rule 3.11. In 2015, the ASA considered an ad for the ‘no!no! PRO’ hair removal device, which stated “SAY ‘GOODBYE!’ TO PROBLEM HAIR FOREVER” along with other claims implying that a long lasting, rather than temporary, effect was achievable. The ASA considered that the evidence provided by the advertiser was not sufficient to substantiate the claims that use of the device would lead to a permanent reduction in the number of hairs in the areas treated and therefore concluded that the ad was misleading (Photo Therapeutics Ltd, 23 December 2015).
Similarly, the ASA upheld a complaint which challenged whether an ad for a household condensation and ventilation system was misleading, by exaggerating the product’s capabilities in relation to the removal of black mould (EnviroVent Ltd, 9 April 2014).
Particular care should be taken when making comparative claims against competitors and marketers should ensure that when doing so, they objectively compare one or more material, verifiable and representative feature of a product or service meeting the same need or intended for the same purpose, while ensuring they don’t mislead consumers about either the advertised or the competing product (rules 3.33, 3.34 and 3.35).
Marketers are also advised to include a signpost to where consumers and competitors can access information on the basis of objective comparative claims by, for example, providing a website address where verification information is provided.
As with all areas of advertising, marketers should remember that marketing communications should reflect the spirit, as well as the letter, of the Code (rule 1.2) and that when assessing complaints, the ASA will consider the overall impression created by an ad, as well as individual claims and images.
See: "Substantiation", "Matters of opinion", "Types of Claims: General", "Comparisons: General", "Comparisons: Verifiability", "Prices: Overview", "Prices: General", "Testimonials and Endorsements", "Claims in Testimonials and Endorsements" and "Substantiation: Sampling References and Consumer Goods".