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 CAP Code requires advertisers to hold documentary evidence to substantiate claims that consumers are likely to regard as objective and that are capable of objective substantiation (3.7). In the absence of sufficient evidence, the ASA is likely to consider objective claims misleading. (See Misleading advertising, Substantiation and Types of claims: General).
Some claims, however, are unlikely to be interpreted as objective claims. Code rule 3.2 states that obvious exaggerations ("puffery") and claims that the average consumer who sees the marketing communication is unlikely to take literally are allowed provided they do not materially mislead. These types of claims are unlikely to be capable of substantiation, and are acceptable, provided they do not materially mislead.
In 2012, the ASA held that an offer of “unlimited free texts forever” was likely to be interpreted by consumers as puffery, and that they were unlikely to infer that free texts would be available literally forever (Everything Everywhere Ltd t/a T-Mobile, 24 October 2012). Similarly, the ASA considered that consumers were unlikely to interpret the claim “superfast in the kitchen”, in an ad for Sky Wi-Fi, to mean that they were guaranteed superfast Wi-Fi speeds on their devices in their kitchen, and instead considered that consumers would understand the ad to mean that that Sky offered a broadband service which provided superfast speeds, but that the speeds obtained in the kitchen would nonetheless be dependent on how far the kitchen was from the router (Sky UK Ltd, 06 March 2019). The claim “Yesterday, today, and tomorrow we have been and always will be by your side”, which appeared in a TV ad for Lloyds Bank was also considered advertising puffery, and not a claim that would be taken literally, or be seen as requiring objective substantiation (Lloyds Bank plc, 03 October 2018).
Marketers should tread carefully and be mindful of the fact that the ASA will consider the likely interpretation of a claim, rather than the marketer’s intention. If the ASA considers a claim to be objective, 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, or “puffery”. The ASA considered the claim “the perfect network” to be an objective one in the context of the ad, despite the advertiser’s argument that it would be seen as puffery. The ASA considered that, in the context of the claim being used in reference to the “network”, without qualification, consumers would understand it to be an objective claim that Sky Mobile performed to a very high standard across a range of factors related to their network. Additionally, because the ads claimed that Sky Mobile was “the perfect network”, consumers would understand the claim to mean that Sky Mobile was the only network which could be described as “perfect” (Sky UK Ltd, 8 June 2022).
Marketers must also take care to ensure that marketing communications do not imply that expressions of opinion are objective claims (Code rule 3.6). In 2002, the ASA upheld a complaint against the claim “Britain’s most informed, independent health expert” (Holford & Associates, 26 March 2003). Although the advertiser considered that the claim was merely an expression of opinion, the ASA thought the claim would be viewed by consumers as an objective one.
The claim “friction free shaving” in ads for a razor subscription service was also considered misleading by the ASA. The advertiser believed that consumers would understand the claim to be an obvious exaggeration which they would not take literally, however, the ASA considered that, in the context of an ad for shaving products, consumers were likely to understand the claim as an objective claim that the products would result in a shave which would be completely free from friction, and without saving’s negative aspects, such as skin irritation, shaving rash, and cuts (Friction Free Shaving Ltd, 15 January 2020).
Similarly, in 2018 the claim “best available tickets” without a qualification was considered an objective claim. The ASA considered that consumers were likely to interpret the claim to mean that those tickets were better than any other available tickets for the event generally. Whilst they appreciated that what was seen as "best" depended on the genre of the event, and to some extent, individual preferences, they considered that consumers were likely to understand the claim "best available tickets" in the context of the ad to mean that those tickets offered a tangible benefit compared to other tickets on sale, because, for example, they were closer to, or offered a better view of, the stage (Ticketmaster UK Ltd, 03 January 2018).
Even if a claim is clearly a matter of opinion, or puffery, the claim must not mislead. In 2005 the ASA upheld a complaint about the claim “the ultimate broadband experience”. Although it accepted the claim was the advertiser’s opinion, the ASA considered the incidence of severe customer dissatisfaction with the service was enough to make the claim misleading (Bulldog Communications Ltd, 2 March 2005).
Marketers should not try to present objective claims as subjective opinions or testimonials in order to make a claim without having the supporting evidence. Even if a claim is presented as an opinion, if it is an objective claim it must be supported by evidence which substantiates the claim (rule 3.7). See Testimonials and Endorsements.