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.
Marketers regularly make the claim in ads that a product or service is ’new’. Historically, CAP’s Copy Advice team have advised that the word “new” be used only when the product or service has been sold for twelve months or less. However, this is obviously dependent on the product and the market in question. For example, in technological markets, where upgrades and product development evolve rapidly, twelve months from the development of a product or service may well be considered too long a period in which to classify that offering as ‘new’. In a less dynamic market, it may be acceptable to describe a model as “new” for longer than twelve months.
Most importantly, there is an overarching need in the CAP Code for marketing communications not to materially mislead consumers (Rule 3.1). Therefore, regardless of the characteristics of the product and/or market in which the advertiser is operating, the fundamental question the ASA will look to answer when considering the use of a ‘new’ claim, is whether its use has misled consumers.
By way of example, in 2020, the ASA considered the content of the homepage of www.new-car-discount.com (Auto Union Finance Ltd t/a new-car-discount, March 2020). The copy in question described the website as a ‘…new car and van online retailer…’ The page also featured a car wrapped in a bow with the heading ‘Join the new car internet buying revolution’. The tabs were titled ‘New Vans’, ‘New Cars’ and ‘Pre Reg’. The ASA said the use of separate tabs distinguishing between ‘new’ and ‘pre reg’ gave the impression that if a consumer purchased a car from the ‘new’ car tab, they would be the first name on the registration documents. As the ‘New’ tab contained both new and pre-registered cars, the placement of the pre-registered vehicles within the ‘new’ tab was deemed misleading. It was decided that material information had been omitted.
Similarly, in 2009 a voiceover described a CD as an artist’s ‘new album’ (Ethical Entertainment Ltd t/a SecretLeona.com, September 2009). Upon investigation, the ASA discovered that whilst all the tracks were available on the CD for the first time (as they were previously only available as downloads and/or had not been released before), describing the album as ‘new’ misleadingly implied the advertised album was the artist’s latest recording, rather than a new CD of tracks recorded some years ago.
This ruling focused on a TV ad, and therefore the BCAP Code, rather than the CAP Code. Despite this, the ASA would be likely to enforce the CAP Code’s misleadingness rules in the same way the equivalent rules in the BCAP Code were applied. As such, when advertising a product or service as ‘new’, care should be taken to not mislead consumers regarding the basis of the claim.
In 2010, a complaint was raised by an industry competitor about an ad for Carling’s ‘New taste lock can’. The advertiser contended that the ad implied the can was a new design, and used new technology. The ASA concluded this was a new design for Carling, albeit one which contained elements that were already used in other cans. As the ad contained no implication that the Carling can was completely new to the industry, made no reference to the fact this can was unique, but only suggested it was “new” to Carling, the complaint was not upheld (Molson Coors Brewing Company, December 2010).
In summary, advertisers must ensure that the use of ‘new’ is not used as a descriptor in a way which could be considered misleading, or which could imply a slightly different meaning (see ‘new album’ example above). Whilst ultimately dependent on context, using ‘new’ to describe an advertiser’s product will not, in the absence of any implication suggesting the same, be deemed to be a reference to a new product across an industry.