Misleading advertising: qualifications


INSIGHT
Published
Aug 1st '22
Share
Facebook

To help marketers understand when qualifications are likely to be required, and the level of clarification needed, Committee of Advertising Practice (CAP) has issued Advertising Guidance on the use of qualifications in ads. The guidance below should be read in conjunction with this Advertising Guidance.

 

Marketing communications must not materially mislead or be likely to do so.  Qualifying information must: be included where it is material to the consumer’s understanding of the primary claim, or marketing communication as a whole; must not contradict the primary claim being qualified to the extent that consumers are likely to be misled; and must be presented clearly with an appropriate level of prominence.

 

  • Qualify claims where necessary

Often, qualifications are necessary to ensure that ads do not mislead. They can provide additional pieces of information that ensure consumers properly understand the headline or primary claims being made and can make an informed decision in relation to the product.

 

Marketing communications must not mislead by omitting material information, or by presenting it in an unclear, unintelligible, ambiguous or untimely manner. Marketing communications must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner. Material information is defined as information that the consumer needs to make informed decisions in relation to a product. Marketing communications which omit material information, making it difficult for consumers to make informed decisions about a marketer’s product or service, are likely to breach this rule.

 

Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.

 

Any limitations which affect how or when a product or service can be used are likely to be considered material information (Trailfinders Ltd, 15 June 2022).  Material information should be included in the initial advertising, and it is unlikely to be considered sufficiently clear to include this in full terms and conditions, or in information which is separate to the initial advertising. The ASA upheld complaints about an ad for an online copywrite service because the ad did not make it clear that the quoted price of £42 was an annual subscription cost, rather than a one off fee (Objective Concept, 12 February 2020).

Marketing communications should also make clear any significant information which applies to an advertised guarantee (Code rule 3.54). The ASA upheld complaints about an ad for a radiator which included the claim “25 year guarantee”. The guarantee only covered the brackets and consumables, and not the radiator, and the ASA considered that this was a significant limitation which should have been made clear in the ad. Because the ad omitted that information, it was considered misleading (Sunny Showers Ltd, 28 March 2018). See also Guarantees and warranties.

 

Additional requirements apply to promotional offers. For guidance on the information which should be included when running promotions, see Promotional marketing: terms and conditions.

 

  • Qualify, don’t contradict

Advertising rules state that qualifications may be used to clarify claims, but they must not contradict those claims to the extent that consumers are likely to be misled. If a qualification is likely to contradict the claim it qualifies is a way which is likely to mislead, the main claim is likely to be considered misleading.

 

The ASA investigated complaints about a website which made the claim “FREE UK 1-7 Day DHL Tracked Shipping Today Only”. Whilst the individual product page stated, in small text near the bottom of the page, that its delivery could take up to 25 days, the ASA considered that this was likely to contradict rather than clarify the banner’s wording, and was likely to mislead (Ellanoir Luxury 2021, 03 November 2021).

 

Complaints about an ad which featured a full-length shot of a model wearing a dress, alongside the claim “SHOP NEW IN FROM £8” were upheld in 2017. Although the ad stated “* DRESS SHOWN £35”, this appeared in very small text in the left-hand bottom corner of the ad, and the ASA considered that consumers were unlikely to notice it. The ASA considered that, even if some consumers had seen the qualification “* DRESS SHOWN £35” it contradicted, rather than clarified, the headline claim (PrettyLittleThing.com, 04 October 2017) See also In The Style, Fashion, 06 January 2021.

 

  • Present qualifications clearly and with sufficient prominence

Advertising rules state that qualifications must be presented clearly. In general, where information is material to a consumer’s understanding of the product or service on offer, it should be presented in a way which can be easily seen and read by the average consumer.

 

Section 5 of the Advertising Guidance on the use of qualifications in ads includes details of some of the factors which are likely to be considered when assessing whether a qualification is sufficiently clear and prominent.  These factors include the size of the qualifications, their positioning in the ad, the significance of the qualification, the content and layout of the rest of the marketing, the nature of the medium, and the prominence of the primary claim.

 

The guidance also provides a ‘qualifying ladder’ to help marketers determine whether information should be in the headline, sub-heading, body copy, or whether it is sufficient to include these in bartnotes.  Marketers should select an appropriate level of prominence relative to the position of their primary claim. The main determinate of this is the importance of the information contained in the qualification to consumers’ understanding of the primary claim; the more important the qualifier, the greater prominence is likely to be necessary. Minor qualifications, especially those that are clearly linked to the claim they qualify (for example, with an asterisk) are likely to be acceptable in bartnotes, but significant qualifications may not be.

 

  • Use of asterisks and footnotes

Sections 7 and 8 of the guidance relate specifically to the use of asterisks and footnotes.

 

In 2020 the ASA upheld complaints against press ads for Surface Pro and iPad contracts, which stated a monthly price in the headline claim.  The small print stated that upfront costs applied, and that the monthly price would increase after three months. However, because those price claims were placed within the body of a large amount of small print, the ASA considered that these were insufficiently prominent and were likely to be overlooked by consumers. Instead, the ASA considered that this information should have been included in the main body of the ad (Telefonica UK Ltd, 08 July 2020).

 

Including qualifications at the end of an email or webpage, only viewable by scrolling down, is unlikely to be sufficient. Footnotes should be prominent and clearly linked to the claim they qualify (Official iPhone Unlock Ltd, 16 May 2018). Vertical qualifications are less likely to be acceptable as they are more difficult to read than horizontal ones.

 

Important qualifications should not be hidden in long bartnotes, and whilst there is no specific font or size that marketers should use for small-print, qualifications included in small-print should not be presented in a text size, font, or colour which makes them difficult to read.

 

Section 9 of the guidance makes clear that marketers should also take media characteristics into account; printed ads that consumers handle directly generally allows a greater opportunity for consumers to read qualifications, for instance, those contained in a bartnote. That is less likely to be the case for media or ad types viewed from a distance (for example, posters).

 

Marketers should also note that Broadcast Committee of Advertising Practice (BCAP) has produced separate guidance on the requirements for the use of superimposed text in TV advertising.

 

See also: Misleading advertising.

 

Source:CAP

 

About CAP

The Committee of Advertising Practice (CAP) is the sister organisation of the Advertising Standards Authority (ASA) and is responsible for writing the Advertising Codes.

 

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 ASA. CAP’s AdviceOnline entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.

 

Need A Regulatory Marketing Compliance Consultant? A Bit More About Us

 

How we can help

LS Consultancy are experts in Marketing and Compliance, and work with a range of firms to assist with improving their documents, processes and systems to mitigate any risk.

 

We provide a cost-effective and timely bespoke copy advice and copy development services to make sure all your advertising and campaigns are compliant, clear and suitable for their purpose.

 

Our range of innovative solutions can be tailored to suit your unique requirements, no matter whether you’re currently working from home, or are continuing to go into the office. Our services can be deployed individually or combined to form a broader solution to release your energies and focus on your clients.

 

Contact us today for a chat or send us an email to find out how we can support you in meeting your current and future challenges with confidence.

 

Explore our full range today.

 

Need A Regulatory Marketing Compliance Consultant? A Bit More About Us

 

Contact us

 

Why Not Download our FREE Brochures! Click here.

 

Call Us Today on 020 8087 2377 or send us an email.

 

FOLLOW US

Connect with us via social media and drop us a message from there. We’d love to hear from you and discuss how we can help.

 

Facebook | Instagram | LinkedIn | X (formally Twitter) | YouTube

 

Contact us