Background
On 7 April 2025, the Advertising Codes were updated to reflect the revocation and restatement of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs – the legislation from which the majority of the CAP and BCAP rules on misleading advertising derived) by the Unfair Commercial Practices provisions in the Digital Markets, Competition and Consumers Act 2024 (DMCCA). On that date, the wording of a number of the rules in the Advertising Codes was changed to reflect relevant changes introduced by the DMCCA on 6 April 2025. Given that the complaint that formed the subject of this ruling was received before 7 April 2025, the ASA considered the ad and complaint under the wording of the rules that existed prior to 7 April 2025, and the Ruling (and references to rules within it) should therefore be read in line with this wording, available here – CAP Code and BCAP Code.
Ad description
A video on demand (VOD) ad for Omnipod5, an insulin delivery system, seen on ITVX on 27 December 2024. The ad featured a woman wearing the Omnipod 5 as the voiceover stated, “I am loving this. Managing diabetes used to pull me away from the fun, but Omnipod5 works with my sensors to help keep me in range […] Meet Omnipod5. Automated insulin delivery simplified. Consult your healthcare professional before starting on Omnipod. For risk information and instructions for use go to omnipod.com”. Separate text in small print appeared four times throughout the ad, which included safety warnings for the product. The end of the ad featured a full page of text that explained the design of the Omnipod 5 System, what it was intended to do and general cautionary advice.
Issue
The complainant, who understood that the small print was not legible and did not appear on screen for long enough, challenged whether the qualifications were presented clearly.Response
Insulet International Ltd t/a Omnipod said the ad was created in accordance with Clearcast VOD guidelines and successfully passed their clearance process. Based on the clearance received, they proceeded with the understanding that the ad met the necessary standards.
Clearcast said the small print was clear and readable and was presented in either white or black as appropriate to the background. The text was at the bottom of the screen, where a viewer would expect it to be, and it was not obscured. They said because the ad was for a medical product, the ad featured a lot of small print. The advertiser wanted to give sufficient information about the product’s suitability and conditions of use for viewers. The advertiser also wanted to clarify the studies on which the claims were based. That information helped viewers to make an informed decision as to whether the product was right for them.
Clearcast said they were mindful of the requirement in the CAP Code that qualifications must be presented clearly. They considered that the text was legible and clear to anyone who wanted to read it by using the pause feature available on a VOD service. Regarding whether the small print appeared on screen for long enough, they said that no time limit was mandated under the CAP Code for qualifications appearing on screen and CAP guidance on the use of qualifications did not refer to timing with a VOD service.
Assessment
Upheld
The CAP Code stated that qualifications must be presented clearly.
The ad was for an insulin delivery system and qualifications appeared in the ad four times. The qualifications included safety warnings, and the end of the ad featured a full page of qualifications explaining the design of the Omnipod 5 System, what it was intended to do and general cautionary advice.
We acknowledged Clearcast’s comments that the CAP Code did not mandate minimum size for qualifications or refer to their timing and that they considered the ad met the requirement that disclaimers were legible and as it was a VOD ad, it could be paused to read the text. However, the CAP guidance on qualifications stated that for online and other non-broadcast audio-visual marketing communications, advertisers should ensure that qualifying text included in video or other moving image formats should be sized appropriately, and for it to be clearly legible to the average consumer reading the ad from a reasonable distance and at a reasonable speed. In addition, it stated that qualifying text should be displayed on screen long enough for consumers to read it.
We considered safety warnings regarding a medical device constituted significant information for consumers and therefore must be presented clearly and legibly, and that viewers should not be expected to pause the ad to read the qualifications. We also considered, however, that the text was small and therefore was not clearly legible when read at a reasonable distance. Further to that, we considered the qualifications overall did not appear on screen long enough for consumers to read them, especially because a large amount of text was displayed. Therefore, because the qualifications were not presented clearly, we concluded the ad breached the Code.
The ad breached CAP Code 3.1 (Misleading advertising) and 3.10 (Qualification).
Action
The ad must not appear again in the form complained of. We told Insulet International Ltd t/a Omnipod to ensure that future ads presented qualifying text clearly.
