A paid-for YouTube ad for FitsWatch, seen on 26 January 2021, included text which stated “£49 Watch Can Save Your Life” and “UK Seniors Are Wearing New £49 SmartWatch to Stay Safe and Healthy”. The ad included the image of a smart watch which had a square dial with a black background display and a small circular button on the top right-hand side.
IssueThe complainant, who believed the ad showed an Apple Watch to promote a different product, challenged whether the ad was misleading.
ResponseUAB Commerce Core did not provide a substantive response to the ASA’s enquiries.
The ASA was concerned by UAB Commerce Core’s lack of substantive response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to provide a substantive response to our enquiries and told them to do so in future.
We considered the shape and screen display of the watch seen in the ad were similar to that of an Apple Watch. We therefore considered that consumers would understand the ad’s references to a watch to be references to an Apple Watch and that they would be able to purchase the product featured in the ad from the advertiser. We understood from the complainant that the advertiser did not sell Apple Watches and instead sold a different fitness tracking watch from the one shown in the ad. We expected UAB Commerce Core to hold evidence to demonstrate that they sold the product shown in the ad. Because the advertiser had not provided any such evidence, we considered that the ad was likely to mislead consumers about the product they sold and we therefore considered that the ad breached the Code.
The ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation), 3.41 3.41 Marketing communications must not mislead the consumer about who manufactures the product. and 3.43 3.43 Marketing communications must not take unfair advantage of the reputation of a competitor's trade mark, trade name or other distinguishing mark or of the designation of origin of a competing product. (Imitation and denigration).
The ad must not appear again in its current form. We told UAB Commerce Core to ensure that they did not mislead consumers about the products they sold. We referred the matter to CAP’s Compliance team.