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 (rule 3.7). In the absence of sufficient evidence, the ASA is likely to consider objective claims to be misleading. See Misleading advertising, Substantiation and Types of claims: General.
Subjective claims should not mislead
Puffery
Certain claims are unlikely to be interpreted as objective claims. Rule 3.2 states that obvious exaggerations ("puffery") and claims that the average consumer is unlikely to take literally are allowed provided they do not materially mislead.
These claims are unlikely to be capable of substantiation, and are acceptable provided they do not materially mislead. For example, the ASA ruled consumers were unlikely to interpret “superfast in the kitchen”, in an ad for Sky Wi-Fi, to mean that they were guaranteed superfast Wi-Fi speeds on their devices from their kitchen. Instead, the ASA thought consumers would understand the ad to mean that Sky offered a broadband service which provided superfast speeds at the router, but that the speeds in the kitchen would depend on the distance between the kitchen and the router (Sky UK Ltd, 06 March 2019). The ASA also thought the claim “Yesterday, today, and tomorrow we have been and always will be by your side”, in an ad for Lloyds Bank, would be understood by consumers to be puffery, and not a claim that would be taken literally or be seen to require objective substantiation (Lloyds Bank plc, 03 October 2018). In contrast, an advertiser for a razor subscription service thought consumers would understand ’friction free shaving’ 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 ’friction free shaving’ as an objective claim that the products would result in a shave completely free from friction, and without the negative aspects of shaving, such as skin irritation, shaving rash, and cuts (Friction Free Shaving Ltd, 15 January 2020). See also (Everything Everywhere Ltd t/a T-Mobile, 24 October 2012).
Opinions in ads
- Expressions of subjective opinion
Marketers are not expected to hold evidence to prove claims which will not be regarded by consumers as objective, or capable of objective substantiation. This may include claims which consumers will interpret as an opinion about the product and service, or those that refer to aspects of a product or service which are based on personal subjective preference, such as look, taste, or feel.
For example, the ASA said “THE BEST SINCE 2004” would be understood, in the context of the ad, as a subjective expression of Slipsilk’s opinion about their pillowcase, and was therefore not capable of being backed up by objective evidence (Slip Enterprises Pty Ltd t/a Slipsilk 11 March 2020). For examples of superlative claims which were interpreted as objective claims, and not subjective opinion, see Types of claim: Superlative.
The ASA will consider a consumer’s likely interpretation of a claim, rather than the marketer’s intention. If the ASA consider that a consumer would understand a claim to be objective, they are likely to find it to be misleading in the absence of adequate substantiation. For this reason, marketers must not imply that expressions of opinion are objective claims (Rule 3.6). For example, in 2022, Sky believed consumers would understand their claim ‘the perfect network’ to be Sky’s opinion, and that the claim would not be interpreted as an objective truth, for example one based on network capabilities or performance. However, the ASA decided that consumers would understand the claim to be an objective one, meaning the advertiser was required to hold objective evidence to substantiate the claim. Because the ad claimed that Sky Mobile was ‘the’ perfect network”, the ASA ruled 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).
- Presenting an objective claim as an opinion
Marketers must not present objective claims as subjective opinion, to negate the need for supporting evidence under Rule 3.7. This could be done, for example, by putting quotation marks around an objective claim, prefixing an objective claim with “users thought” or making objective claims in testimonials (see testimonials section for more information). Even if a claim is presented as an opinion, if its objective, it must be supported by evidence (Rule 3.7)
Some claims might be considered subjective in one context but objective in another. The ASA has considered claims such as “best” to be objective in some contexts but subjective in others. See Types of claim: Best and Types of claim: Best-selling. Marketers should read the guidance on Comparisons: general, before making claims which may be considered comparisons.
Subjective claims should not mislead
According to Rule 3.6, subjective claims must not mislead the consumer. Rule 3.2 also makes clear that puffery, and claims the average consumer is unlikely to take literally, must not materially mislead. In 2005, the ASA upheld a complaint about the claim “the ultimate broadband experience” on this basis. Although the ASA 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 inherently misleading (Bulldog Communications Ltd, 2 March 2005).
Testimonials
Testimonials expressing opinions may be used but, if they relate to a claim that can be measured objectively (for example, the efficacy of a product), the claim should be supported with independent evidence of its accuracy.
An ad for CEASE therapy which included testimonials was upheld by the ASA, who considered that visitors to the website would understand the claims in the testimonial to be factual, and as therefore relating to the objective benefits of CEASE therapy. As such, the ASA considered that the ad made claims for the efficacy of CEASE therapy in treating autism, despite the advertiser holding no supporting evidence (Teddington Homeopathy, 22 July 2015).
See Testimonials and Endorsements for more information.
Ideological messaging
Certain claims, like those made by pressure groups, charities or campaigners are likely to promote one point of view over another. Such groups are not obliged to present a balanced argument in their ads. The CAP Code states the ASA does not arbitrate between conflicting ideologies. If marketers are obviously expressing opinions about their beliefs, the ASA is unlikely to intervene unless ads mislead or offend (Lydd Airport Action Group, 27 June 2007).
For example, in 2019 PETA claimed that ‘wool is just as cruel as fur’. The ASA said the public would recognise that the ad was published by an animal rights organisation, and that the claim would represent their views. However, because the ad was presented as a factual claim and a direct comparison between two industries, the ad was deemed misleading in the absence of adequate substantiation (PETA Foundation, 4 September 2019).
Regarding the need for claims from campaigners to be adequately substantiated, and to not mislead, see Friends of the Earth Ltd, 10 July 2019 and Both Lives Matter, 2 August 2017.